text:
    Mary I. Kelly, Resp’t, v. Elliott E. Smith, App’lt.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    1. Summary proceedings—Assignee oe landlord.
    To be an assignee of a landlord within § 2285 of the Code the party must hold the entire estate of the landlord in the term demised to the tenant against whom the proceeding is had.
    2. Same.
    One K., who was the lessee of certain premises for a term of years, sublet for the residue of the term to defendant, and thereafter assigned the sublease to plaintiff, but the lease to himself was not assigned. Held, that no estate in the premises or interest in the term was conveyed by the assignment, but only a right to the rents, which carried with it no title to maintain summary proceedings.
    Appeal from final order of a justice’s court in a summary proceeding awarding possession to respondent
    In 1885 Alfred Corning Clark, owner of the fee, let the premises to Thomas P. Kelly for a term of ten years; on 15th January, ■ 1891, Kelly sublet for the residue of the term to the appellant Smith; on 13th June, 1891, Kelly assigned the Smith lease to the respondent Mary I. Kelly, and she was the petitioning landlord in the proceeding. Kelly’s lease from Clark was not assigned to the respondent.

      A. Hamilton Reavey, for resp’t; Thomas G. Evans, for app’lt
   Pryor, J.

The contention of the appellant-is, that on the evidence the respondent sustained no such relation to the term or to the tenant as would give the court jurisdiction to entertain the proceeding, and that, therefore, there was error in denying the motion to dismiss it. The point presented appears to be without precedent; nevertheless, upon familiar principles, its solution is neither difficult nor doubtful.

Declaring the law as it had been ruled theretofore, and as it has been uniformly held since, in 1862 this court said: “ From the time the statute was passed authorizing summary proceedings for the recovery of the possession of land, to the present day, it has been uniformly held to be applicable only where it is shown that, as between the party applying for the summons and the party in possession, the conventional relation of landlord and tenant exists -created by agreement between them, and not by mere operation «of law. It can only be instituted when the party in possession has by some act or agreement recognized the other as his lessor or landlord, and takes upon himself the character of tenant, so that he is not at liberty afterwards to dispute his title.” Imbert v. Hallock, 23 How., 456, 461; Benjamin v. Benjamin, 5 N. Y., 383 ; People v. Simpson, 28 id., 55; People v. Howlett, 76 id., 574; Matter of Hosley, 56 Hun, 240; 30 St. Rep., 711.

It must appear that “ the applicant is entitled to the actual possession and that the occupant holds in opposition to his title.” People v. Andrews, 52 N. Y., 445. Here no tenancy by estoppel is pretended against the •mpellant; but the respondent founds her right to relief explicitly .. "Ausively upon the ground that “ the ■conventional relation of lan. A tenant, in the strict technical ¡sense,” exists between the respom... and appellant. Although there was no demise by the respondent to the appellant, yet, bv -express provision of the statute the proceeding may be maintained by “an assignee of the landlord,” Code, § 2235, and the respondent stakes her case upon the proposition that she is the assignee of appellant’s landlord. But, to be an assignee within the statute, she must “ hold the entire estate of the landlord in the term demised to the tenant against whom the proceeding is had.” Imbert v. Hallock, 23 How., 462.

It is evident, beyond controversy, that the respondent does not hold the entire estate of her assignor, Thomas P. Kelly, in the term demised to Smith ; nor, indeed, any interest in it whatsoever.

In Demarest v. Willard, 8 Cowen, 206, a lessor for a term, with covenants by the lessee to pay rent and leave in repair, made an endorsement on his lease assigning the rent and “ the within lease; ” and the court by Savage, Ch. J., said: “It was perfectly within the power of the plaintiff to have assigned the rent to one,, and the reversion to another; but he conveyed nothing besides the-rent, unless something more passed by the words ‘the within lease.’ If anything was intended more than the instrument itself, it must be the plaintiff’s interest in the premises during the term. I am satisfied that nothing more than the rent was assigned.

In Huerstel v. Lorillard, 6 Robt., 260, Lorillard demised to Hurlburt, and afterwards assigned to Huerstel “ the agreement of lease ” with Hurlburt, and “ all the right, title and interest therein and thereto, and to the rents, issues and profits arising and thereafter to arise during the whole term, and to the covenants and agreements therein contained.” Held by Mon ell, J., that “ beyond an assignment, the lessor does not transfer to the assignee any interest whatever in the demised estate; he simply sets over to the assignee the covenant of his tenant to pay the rent, and with it. the right to compel performance of such covenant by action, and he cannot resort to any measures to regain possession of the demised premises,” p. 262. On appeal, Robertson, Oh. J., at general term,, approved the doctrine thus enunciated by Mouell, J., 7 Robt., 267-

In the case before us, the lessee, Thomas P. Kelly, did not assign to the respondent the lease from his landlord, by which alone he held any title to the premises; but his assignment to the respondent was only of the “indenture of lease,” to .Smith, “ with all and singular the premises therein mentioned and described',, and the buildings thereon, together with the appurtenances.” On the authority of Demarest v. Willard and Huerstel v. Lorillard, supra, it would seem that by the assignment of Thomas P. Kelly to the respondent no estate in the premises or interest in the term was conveyed, but only a right to the rents; a right which, though enforceable by action, constitutes no title to maintain the present proceeding.

But, however that may be, and, however apt and explicit the phraseology in the assignment of Thomas P. Kelly to the respondent to convey an estate in the premises and an interest in the term,, it was inoperative and ineffectual to that purpose, for the obvious and all-sufficient reason that he then had no such estate or interest to transfer. For, by an instrument which, though in form a. lease, was in legal effect an assignment, Wood hull v. Rosenthal, 61 N. Y., 389, he had already conveyed to the appellant Smith all his interest in the term and al’ his estate in the premises. JS on dot qui non habet. Broom’s Maxims, 467.

As lessee of Clark, Thomas P. Kelly assigned his term to appellant Smith; and since he had no reversionary interest, this conveyance necessarily divested him of all his estate in the premises. .As lessor of Smith, Thomas P. Kelly assigned to the respondent whatever interest he had; namely, a bare right to receive the rents, a mere chose in action, which carried with it no claim to possession, and no title to maintain this proceeding. Authorities, supra.

The respondent having no right to institute the proceeding, the justice"should not have entertained it; and there was error in denying appellant’s motion to dismiss it.

It is probable, on the evidence, that the assignment to the respondent was fictitious and inoperative; and, also, that the appellant’s ,plea of payment was substantiated; but since, for the reason given, the order must be reversed, we forbear to consider other objections to it.

As appellant's term is to continue until 1st June, 1895, justice requires that it be restored to him.

Order reversed, and restitution directed, with costs.

Daly, Ch. J., and Bischoff, J., concur.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Abraham Rosenberg, Resp’t, v. Harris Lustgarten, App’lt.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Landlord and tenant—Liability of tenant holding over.
    Defendant, who was a tenant of plaintiff, told him he would move on May 1. Plaintiff then put up a notice, gave the defendant a few days to move, accepted the keys on May 4th, and took possession. Held, that plaintiff’s conduct was inconsistent with the theory of a new term, and that defendant was only liable for use and occupation for the time he held over with plaintiff’s consent.
    Appeal from a judgment rendered by a district court in the -city of Hew York for the fourth judicial district.

      Nathan S. Levy, for resp’t; John Fennel for app’lt.
   Bookstaver, J.

This action was 1 ' to recover rent for the month of May, 1891. The ansv general denial and surrender and acceptance.

The defendant had been the tenant o or several months before the 1st May, 1891. From the . appears that there had been some talk about an increased rent after the 1st of May, and according to plaintiff’s testimony the defendant at first agreed to remain, but afterwards told plaintiff that he would move on the 1st of May. Ho lease was executed, and it appears from plaintiff’s own testimony that although the first notice was taken down after the tenant said he would stay, yet after his notification that he would move the landlord, either personally or through some one by his authority, put up a new motice to let which was on the premises upon the 1st of May. .It is also uncontradicted that the landlord had agreed that the defendant might take a few days to remove from the premises, and also that the tenant, on the 4tli of May, 1891, gave up the keys of the premises to the housekeeper of the building and. that the plaintiff thereafter went into possession.

Where a tenant holds over, the landlord may treat him either as a trespasser or a tenant. Witt v. Mayor, 6 Robt., 451; Schuyler v. Smith, 51 N. Y., 315. But such holding over puts the landlord to his election; he must either accept the tenant as a' tenant, for a new term or treat him as a trespasser; he cannot do both. If he held him as a tenant he had no right to put up a-notice “ to-let,” and no right to take possession pending the term.

I think in this case the landlord must, from the undisputed, evidence, be held to have elected to hold the defendant as a trespasser; his acceptance of the keys and taking possession on the-4th of May was consistent with this and inconsistent with the-theory of a new term. Hence the tenant would only be liable-for use and occupation during the time he held over with the-landlord’s consent.

This being so, the landlord was entitled to judgment for four days use and occupation; $5.74, with $2.50 costs, only. Hazeltine v. Weld, 73 N. Y., 156; Dillon v. Anderson, 43 id., 237.

The judgment should, therefore, be reduced to $8.24, including-costs, and as so reduced should be affirmed. And inasmuch as-appellant offered to allow judgment for this amount in the court-below, he should have the costs and disbursements of this appeal-

Bischoff, J., concurs.


author: Daly, Ch. J.

text:
    The People, Resp’ts, v. William F. Ehrsam, Surety, and Frank Himmel, App’lts.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Disorderly persons—Consolidation act, §§ 1455, 1456—Subsequent OFFER OF SUPPORT.
    The conviction of a husband as a disorderly person under §§ 1455,. 1456 of the Consolidation Act of the city of Hew York is conclusive that-he shall support his wife by payment of the specified sum to the commissioners of charities and corrections, and no offer to furnish any other support for the period of one year can be received as a substitute for compliance with the magistrate’s order.
    Motion for reargument, or for leave to go to the court of appeals.

      Jas. Murphy, for motion ; Louis Hanneman, opposed.
   Daly, Ch. J.

As to the motion for reargument, it does not-appear that the court in disposing of the appeal in this case overlooked the statutes and decisions cited by appellants.

The consolidation act provides that where a party is convicted of being a disorderly person, or of having threatened to abandon,, or having actually abandoned his family, wife or child in the city of Hew York, without adequate support, or in danger of becoming-a burden upon the public, or of having neglected to provide according to his means for his family, the magistrate convicting shall make an order specifying a certain sum to be paid, to the commissioners of charities and corrections of said city weekly for and towards the support of the family of said defendant, such order to-be for the period of one year. Consolidation Act, §§ 1455, 1456.. The Code of Criminal Procedure provides that where the magistrate is satisfied by competent testimony that the defendant is a disorderly person for having actually abandoned his wife or children without adequate support, or for leaving them in danger of becoming a burden upon the public, or neglected to provide for them according to his means, <5r threatened to run away and leave his wife or children a burden upon the public, he may require that the person charged give security by a written undertaking, with one or more sureties approved by the magistrate, to the effect that such person will support his wife or children and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public, and that the undertaking is forfeited by the commission of any of the acts which constitute the person by whom it was given a disorderly person. Code-Grim. Pro., §§ 899-904.

In this case the defendant Himmel was duly convicted on. September 20, 1890, in the city of New York, before police justice McMahon, of being a disorderly person within the provisions above cited, and was ordered to pay the sum of six dollars weekly to the commissioners of public charities and correction of the city and county of New York, toward the support of his family, for the period of one year from said date. Thereupon the defendant Ehrsam entered into a recognizance that Himmel should be of good behavior towards the people of the state of New York for the space of one year then next ensuing the said date, and should pay to the said commissioners weekly, and every week, the said sum. Himmel did not pay the said sum, and this action was brought to enforce the penalty of the said recognizance, which was for $250. The defence was that in November and December, 1890, and before and since, defendant Himmel had made-proffers to his wife to live with her and support her, which offer she declined, and that said Himmel, therefore, had not abandoned his wife or children without adequate support, or left them in danger of becoming a burden upon the public, or neglected to provide for them according to his means.

The justice refused to receive evidence in support of such defence, and upon proof that the husband had neglected to pay the six dollars weekly as.ordered upon his conviction, gave judgment upon the recognizance; from which judgment this appeal was taken.

All the questions which the appellant seeks to raise upon this motion for re-argument, were duly considered by the general term in passing upon the appeal, and in affirming the judgment. The questions as to whether the recognizance was authorized by law, and whether the defence interposed was available to the surety, were passed upon. It was held that the recognizance was authorized by the Criminal Code, as modified by the provisions of the-consolidation act, making special provision for the city and county of New York, following the decision of the general term of this court in The People v. Bracco, January, 1886.

The failure to pay the weekly sum specified in the order of conviction was a breach of the undertaking. It was a failure to-provide for his wife and the commission, of an act constituting Himmel a disorderly person. The case of The People v. Pettit, 74 N. Y., 320, cited by the appellant, has no application, because the conviction there was not in the city of New York, and consequently there was no order for the payment of a specified sum. The undertaking in that case followed the language of the Criminal Code, § 901, providing that the prisoner would support his wife and children; and it could be forfeited only by proof of his failure to do so; which proof could be combatted by showing.that the defendani had offered "to support his wife, if she would.live with him.

The court said that to maintain an action upon a recognizance given upon the conviction of a person as a disorderly person for neglecting to support his wife and children, it must be made to appear that subsequent to the giving of the bond the person has been guilty of such neglect, and that the conviction is not evidence •of a subsequent breach of the condition of the recognizance. This rule was not violated in the case before us. The conviction of Himmel was not held to be evidence of a subsequent breach of the condition of his recognizance; but proof of a failure to comply with the order made upon such conviction was held to be a breach. It was evidently the intention of the framers of the statute relating ■to the city of New York, Consolidation act, § §1455 and 1456, that upon the conviction of the offender, the magistrate should determine what support he should give his wife and make art order for the payment of a specified sum accordingly. The conviction is conclusive that he shall support his wife in that way, and no offer to furnish any other support for the period of one year specified in the statute can be received as a substitute for compliance with the order of the magistrate.

As to the motion for leave to go to the court of appeals, there ■seems to be no doubt of the correctness of the conclusion arrived .at in this case on the part of the judges. They followed the decision of the general term in the case of The People v. Bracco, above referred to. The practice of the police magistrates and of the district courts has béen uniform on the subject, and the case is not of sufficient public importance to require its submission to the highest tribunal in the state.

The motion should, therefore, be denied, with ten dollars costs.

Bischoff, J., concurs.


text:
    Maurice M. Sternberger et al. App’lts, v. The Manhattan Railway Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 7, 1891.)

    Railroad—Elevated—Damages—Charge.
    In an action to recover damages resulting to plaintiffs’ premises from the maintenance and operation of defendants’ road it appeared that during the time for which the damages were claimed the premises were under a five years lease executed after the erection of the road. The court charged that “ in considering whether there was any. and if any what loss of rental value to the premises * * * from the defendants’ railroad during the period in question the jury are to consider, with all the other facts in the case, the fact that before April 11, 1885, said premises had been put under a five years lease from January 1, 1884, at a fixed rental * * * and that said rental must have remained the same during the whole period even if the railroad had been taken away before April 11, 1885.” Held, error.
    Appeal by plaintiff from, judgment entered upon verdict of jury awarding six cents damages for injury to the rental value of property 89 and 91, and 190,192 and 194 South Fifth avenue, caused by the erection and operation of the elevated railroad. Appeal also from order denying motion for new trial on the ground of inadequacy of damages.

      E. W. Tyler, for app’lts; Edward C. James, for resp’ts.
   Daly, Ch. J.

This action is brought to recover damages to the plaintiffs’ property on South Fifth avenue, resulting, as it is-claimed, from the maintenance and operation of the elevated railroad. The plaintiffs’ houses and lots were known by the street numbers 89 and 91, and 190, 192 and 194. As to Nos. 89 and 91 .damages were claimed from April 11,1885, to December SO, 1886; as to Nos. 190,192 and 194, from April 11,1885, to April 11,1888. The latter premises were purchased in 1866 by the plaintiffs Simon Sternberger and by Meyer Sternberger (under whom the other plaintiffs claim), and the former premises were purchased in 1868 by the plaintiff Simon and the said Meyer and one Enchinan, who conveyed his interest to the Sternbergers on December 21, 1883. The premises 190, 192 and 194 were leased for five years from January 1, 1884, to the Kursheedt Manufacturing Company. This lease covered the period for which damages were claimed in this action. The action was tried before a jury and a verdict for six cents damages was awarded. The plaintiffs-claim that they were injuriously affected by the instructions given by the court to the jury at defendants’ request, as follows: “ In considering whether there was any, and if any what loss of rental value to the premises Nos. 190, 192 and 194 South Fifth » avenue from the defendants’ railroad during the period in question, the jury are to consider, with all the other facts in the case, the fact that before April 11, 1885, said premises had been put under a five years lease from January 1, 1884, at a fixed rental of $6,000 a year, and that said rental must have remained the same during the whole period, even if the railroad had been taken away before April 11, 1885.” The plaintiff excepted to this instruction.

It would seem that the lease referred to could have no possible bearing upon the question which the jury had to determine. Had the railroad been taken away during the period for which damages were claimed, the damage would have ceased and plaintiffs could not recover thereafter whether there was a lease or not - but the railroad remained in full operation during the whole time they sued for, and the fact that there was a lease covering the the whole period at a specified rental could make no difference, whatever in deciding the question submitted to the jury. The lease in question was made after the injury to the property had been inflicted by the railroad, and the rent reserved in it was, as-far as the case shows, the best that could be obtained. It would not assist the jury in arriving at a conclusion as to what loss of rental value to the premises was caused by the defendants’ railroad during the period in question, to consider the fact that during said period the premises were covered by that lease. The instruction might have led the jury into the belief that they were at liberty to find that the loss of rental value for the period shed for was due to the plaintiffs’ act in making a five years lease as well as to the continued operation of the railroad. This is forcibly suggested by the concluding clause of the instruction, “ And that said rental must have remained the same during the whole period, even if the railroad had been taken away before April 11, 1885." It was not an instruction that in estimating the loss of rents to the plaintiffs the jury might take into consideration the lease as depriving plaintiffs by their own act of the advantage of .any rise in rental value during the term, but it was an instruction that in considering whether the defendants’ railroad had caused .any loss of rental value to the premises, the plaintiffs’ act in making a lease was to be considered, and as to this, as we have said, the lease was wholly immaterial.

It would seem, therefore, that the exception to the instruction complained of was well taken, and the judgment should be reversed and a new trial ordered, with costs to abide the event

Bischoff, J., concurs.


author: Gray, J.

text:
    William Barry, Resp’t, v. Orson Coville et al., App’lts.

      (Court of Appeals,

      Filed December 15, 1891.)

    1. Deed—When may be shown to have been given as security.
    Plaintiff, in order to secure the payment of his indebtedness to defendants, in October, 1884, assigned two-thirds of certain patents to them, to be reassigned upon liquidation of said indebtedness. Subsequently the agreement was extended to July, 1885. In April, 1885, plaintiff executed and delivered to defendants a patent deed conveying to them two-thirds of his interest in one of said patents, no consideration being given. In July, 1885, defendants refused to continue their arrangements under the con- ‘ tract or to reassign the patent, although full satisfaction of plaintiff’s indebtedness was offered. Held, that there was sufficient evidence for the court to find that the deed was executed and delivered merely in furtherance of the agreement, and that it was in the nature of a security, and to compel defendants upon showing that nothing was due them to reassign to plaintiff.
    2. Same—Services.
    The court charged defendants upon the accounting with the value of plaintiff’s labor, performed in perfecting improvements upon "one of the inventions, and done at defendants’ request and upon their promise to compensate him for it, the contract not requiring him to do it. Held, no error.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming interlocutory judgment and final judgment entered on referee’s report in favor of plaintiff.
    Plaintiff brought this action to compel the defendants to reassign to him certain interests which they had acquired in letters patent issued to him for inventions, etc., and for an accounting between the parties. The plaintiff had invented an improvement in door hangers, and in roller skates, a machine for stripping willows and a post office cancelling apparatus. He was somewhat in debt to the defendants, and, in October, 1884, to secure to them the payment of that indebtedness, as well as to make a provision in the future for a supply of goods, etc., for his support and for .some moneys to perfect a machine, he entered into a contract with the defendants, who were engaged in the grocery business. By this contract plaintiff assigned to the defendants two-thirds of his interest in his inventions, or patents, and the defendants agreed to furnish funds for manufacturing a certain trial machine, and to furnish to plaintiff goods and provisions “ so long as they shall be satisfied with the success of the manufacturing and carrying forward the business under said inventions as hereinafter specified •and limited, together with ten dollars per month for house rent and necessary fuel for said time.” The contract then goes on to provide that out of plaintiff’s share of the profits and proceeds of sales should be paid his past obligations and his indebtedness to defendants as it may accrue during the continuance of the contract. It is then finally provided that in case the defendants become satisfied after three months “ that it will not be profitable for them to continue their interest in this agreement in and to the manufacturing of the articles under said inventions, or in the performance of their obligations, they shall have the right to terminate the agreement, and the same shall become inoperative and wold, but shall retain their interest and claims therein till they .■shall be fully paid their said indebtedness up to such time as they shall terminate this agreement, but they shall upon payment to them of their said indebtedness reassign their said interest in said inventions ” to the plaintiff.
    Subsequently, the time to terminate the agreement was extended by agreement to July 1, 1885. In the month of April, following the agreement, plaintiff executed and delivered to the defendants a patent deed conveying to them two-thirds of his interest in the patent for door hangers, which was recorded in the patent office. Ho consideration was given for this deed and that expressed in its language was nominal. On July 1, 1885, the ■defendants refused to continue the arrangement under the contract, and they subsequently refused to reassign the patent interests ; though full satisfaction of their demands and of plaintiff’s ■indebtedness was offered them.
    The trial court decided that the transfers of patent interests by 'plaintiff were for a security for the repayment of plaintiff’s indebtedness as specified in the contract, and upon such repayment being made to defendants they should reconvey to plaintiff the interests in his patents acquired under contract or deed, and the court directed an accounting to be had before a referee as to the matters covered by the contract and as well as to services performed by plaintiff at defendants’ request. Upon that reference a balance was found resulting in favor of the plaintiff; after ■crediting, defendants with plaintiff’s debt to them for moneys advanced and goods furnished, and charging them with the value of certain services rendered by plaintiff and with royalties reeeived by them. From the judgment of the general term, affirming the interlocutory judgment and the final judgment entered upon the referee’s report, the defendants have appealed to-this court.

      M. M. Waters, for app’lts ; C. G. Baldwin, for resp’t.

       Affirming 36 St. Rep., 598.

   Gray, J.

The facts, which have been stated, sufficiently exhibit the positions of the parties and enable us to review the two-questions which the appellants’ counsel has argued here. He says-that the patent deed, conveying an interest in the patent described, was absolute, and that the evidence did not justify a finding that it was a security only. His argument is, in effect, that as no fraud was found, or practiced, in respect to-its execution, paroi evidence could not destroy the absolute-character of the conveyance, and equity was powerless to attach to it a defeasance. If the deed of this particular patent interest stood alone, and there was no light cast upon it, in which the intentions and understanding of the parties to it could clearly be read, of course it would stand as an absolute conveyance. But where, as here, the court had before it the circumstances connected with its making, and the conceded absence of any new consideration for it, it was proper and right to consider the facts which showed it to be for a security, and to judge accordingly. It is a perfectly well settled rule in equity that a conveyance, absolute upon its face, may be shown by paroi or extrinsic evidence to be in reality merely for a security, and to that end the presence of some fraud, or mistake, in the inception of the instrument is not at all essential to be shown. That is an ancient doctrine in equity, which has come down to present times, and to which the courts of this state are fully committed in many decisions. For a fuller discussion of the doctrine, reference may be had to Judge Allen's opinion in Horn v. Keteltas, 46 N. Y., 605.

In the present case the court had sufficient evidence before it upon which to find this deed to have been executed and delivered merely in furtherance of the agreement made in the previous October between the parties, and to be in the nature of a security.

The finding made in that respect is conclusive upon us. The contract defined the relations of the parties and their respective rights during a period of time which had not expired when this patent deed was made. Its provisions gave an absolute ownership to the defendants in the patent interests to the extent described while the contract lasted; but when, upon the default or the election of the defendants, its ceased to be operative, its provisions required the defendants to re-assign their interests; or, at, furthest, to retain them only so long as the plaintiff’s indebtedness was undischarged. The deed given during the running of the contract is unexplained, unless by the fact that it completed the assignment of the interest in the patents, which the contract had undertaken to transfer. It was delivered because of the contract, and its operation was limited by the understanding of the parties, as evidenced by the testimony and the existing agreement. If, by the force of their agreement, the ownership of the patent interests by the defendants was, in a certain contingency, to cease, and the plaintiff was to have them back, obviously this deed would be controlled by the agreement.

It would require proof of some other agreement, and of some new «consideration pending the running of the contract, to give to the patent deed a necessary operation independent of the terms of the contract. Its validity is not affected whether it is considered as an absolute conveyance of patent rights, or as a mortgage upon them. We will not, therefore, disturb the decree of the court adjudging as to the nature of contract and deed and that the defendants should re-assign to the plaintiff the patent interests they had acquired, upon a satisfaction of whatever obligations he might be shown to be under to them and as a security for which the contract was intended to operate.

But the appellants further insist that it was error for the •court to charge the defendants upon the accounting with the value ■of plaintiff’s labor. That labor, as it was correctly found, was performed in perfecting improvements upon the roller skate invention. It was performed, as there was evidence to show, at the «defendants’ request subsequently to the making of the contract, .and the request was only complied with upon the defendants promising to compensate plaintiff for his time spent. The terms of the contract did not require of him to do this particular work and there was no reason why he should not agree with the defendants to work especially for them, in reference to any one of the particular inventions (which seems to have been the case here), .and that he should be paid for that work as an independent transaction or arrangement. The appellants, however, find fault with the decision of the court below on the ground that the expenditures were upon the property of parties having joint interests in it and that plaintiff, as one of the parties, should not, therefore, Be allowed a credit for it. In support of this view the appellants’ counsel advances arguments based upon the rule governing the relations of tenants in common, or of mortgagor and mortgagee. But that line of argument is not applicable to the present case ; inasmuch as the court has found, upon sufficient evidence, that there was a special hiring of the plaintiff by the defendants to do the particular work in question. It was, therefore, not like a case •of work done by a joint owner, or by a mortgagee, in the improvement of the property in which there was a joint interest. This liability to pay plaintiff for his services arose upon their rendition and was, in a certain sense, as they were not called for by the contract, outside of the contract. He was entitled to be paid if the «contract continued and when it terminated such payment was a proper .charge against the defendants in stating the account between them and him to ascertain what, if any, claim they had upon the patent interests as security for the plaintiff’s indebtedness to them.

The appellants allege no other error and the judgment appealed from should be affirmed, with costs.

All concur.


author: Vann, J.

text:
    George W. Smith et al., App’lts, v. Wilbur H. Proctor et al., Trustees, Resp’ts.

      (Court of Appeals, Second Division,

      Filed December 15, 1891.)

    Schools—Bonds, how authorized — What tote required by the STATUTE.
    In order to adopt a resolution to bond a district for school purposes, such as erecting a new school house, the statute requires simply a majority of the qualified voters in attendance pursuant to legal notice who actually vote upon the question submitted by answering “Aye” or “No” as the names of all present are called. Those who do not respond as their names are called should not be counted at all.
    (Parker, J., dissents.)
    Appeal from a judgment of the general term of the supreme-court in the second judicial department, affirming a judgment entered upon the decision of the court at special term, dismissing-the complaint, with costs.
    This action was brought by certain taxpayers of school district number 2, of the town of Newtown, Queens county, against, the defendants, as the trustees and the collector of said district, to restrain said trustees from issuing bonds for the erection of a new school house and to restrain said collector from collecting a tax already levied for the purpose of paying one year’s interest, on such bonds.
    The facts appear in the opinion.

      J. E. Parsons, for app’lts ; Marquis D. Gould, for resp’ts.
   Vann, J.

The only question brought before us by this appeal is, whether the resolution to bond the district was adopted, by a majority of the qualified voters, within the meaning of the-statute governing the subject.

The trial court found that there were 300 residents of the district entitled to vote at school meetings at the time the resolution was adopted and that all of them had been duly notified of the meeting and its purposes, which included, by specific mention, the voting of “a tax to be raised by instalments * * * to-be expended in the erection of ” a new school house. At a meeting held only a few days before it had been determined, by a vote of sixty-nine to forty-seven, that it “ was advisable to erect a new school building,” and a committee was thereupon appointed to procure information respecting the site, cost, etc., with instructions to report at a future meeting. An adjournment was then taken and on the adjourned day 115 voting inhabitants were-present, when the resolution in question was adopted by a vote of.' thirty-four for to thirty-three against the same, only sixty-seven, having voted upon the question.

The statute regulating the course to be pursued in order to-issue valid bonds is as follows:

“Whenever a majority of all the inhabitants of any school district entitled to vote, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual,, special or adjourned school district meeting, legally called or held, shall determine that the sum proposed and provided for in the next preceding section shall be raised by instalments, it shall be the duty of the trustees of such district, and they are hereby authorized to cause the same to be raised, levied and collected in equal annual instalments in the same manner and with the like authority that other school taxes are raised, levied and collected, and * * * whenever a tax shall have been voted to be collected in instalments for the purpose of building a new school house, to borrow so much of the sum voted as may be necessary at a rate of interest not exceeding six per cent, and to issue bonds or other evidences of indebtedness therefor, which shall be a charge upon the district and be paid at maturity, and which shall not be sold below par.” Laws 1864, chap. 555, p. 1245, § 19; Laws 1875, chap. 567, p. 642, § 18; Laws 1881, chap. 528, p. 706, § 2.

As the thirty-four electors who voted in favor of the proposition were less than a majority of the 115 qualified voters who attended the meeting, it is contended in behalf of the plaintiffs that the resolution did not receive the majority required by statute, and hence that the trustees were without lawful authority to issue the bonds. The argument is conclusive, unless the legislature‘has provided some means of ascertaining a majority of the legal voters other than a simple enumeration of all the qualified voters of the district, or even of all who attended the meeting.

An analysis of the statute suggests the inquiry whether it requires a majority of all entitled to vote, or a majority of all present and entitled to vote, or a majority of all present and entitled to vote and actually voting ? The answer to this question is to be found in the words “to be ascertained,” as used in the statute. What is to be ascertained ? Obviously, the majority required to make the determination. How is it to be ascertained ? The statute answers: “By taking and recording the ayes and noes of such inhabitants attending,” that is, as attend the meeting. How is a vote by ayes and noes taken and recorded? By calling the names •of those present and recording such as vote “ aye as in favor of, and such as vote “ no ” as opposed to the pending resolution. As those who do not vote cannot be recorded as voting, the majority must be determined by comparing the number of those who vote “ aye ” with the number of those who vote “no.” Those who did not vote at all can not be recorded as voting “no,” because they did not vote “ no,” and to so record them would falsify the record. When a vote is taken under a statute which provides that a majority is to be ascertained by taking and recording the ayes and noes of those present at the meeting, we think that those who do not respond as their names are called should not be counted at all, and that certainly they should not be counted as if they had voted “ no.” The rule of the common law pertaining to the subject, as declared by Lord Mansfield, is that “ whenever electors are present and do not vote at all, they virtually acquiesce in the election made by those who do.” Oldknow v. Wainwright, 2 Burr., 1017, 1021. And by Lord Den-man, that a vote by a majority of a meeting means “ a majority of those who choose to take a part in the proceedings of the assembly.” Gosling v. Veley, 7 A. & E., N. R, 406, 456.

The language of the supreme court of the United States in a recent case has a bearing upon the subject. Speaking through its chief justice, that learned court said, that “all qualified voters who absent themselves from an election duly called, are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares.” County of Cass v. Johnston, 95 U. S., 360, 369. For many years it has been the established policy of the state to cherish common schools,, and for this purpose it annually expends large sums of money. The statute, of which the section under consideration forms a part,, is an elaborate and comprehensive act, designed to furnish instruction free of expense to all the children in the state. Great care is-taken to provide for the erection of suitable buildings for school purposes, and if a district needs a new school bouse and will not voluntarily build one, agencies are provided by which it may be compelled to build one, even against the wishes of a majority of the taxpayers. Raws 1887, chap. 592, p. 805, § 1. The statute' should receive a reasonable construction, keeping in view its general purpose to promote the efficiency of the common schools. It would not he reasonable to hold that the majority required is an absolute majority of all the qualified voters of the district-, because the statute does not so command, and, on that basis, it would be difficult if not impossible to tell whether a resolution had been carried or not. No enumeration or registration of voters is provided for, and the qualifications of persons entitled to vote at school meetings differ materially from those of electors at general elections. Hence a dangerous question of fact would always be-open and the value of the bonds would be seriously affected thereby. Prudent men would hesitate before investing in securities resting on such a precarious foundation.

So, as we think, it would be unreasonable to hold, in the absence of an express provision to that effect, that a majority is required of all who were present at the meeting, whether they voted or not, as this also might leave the result uncertain and invite controversy. By following the plain language of the statute and ascertaining a majority by comparing the affirmative and negative votes as actually given and recorded, these difficulties are avoided and the beneficent aim of the legislature is accomplished. This-is the construction which has been uniformly given to the section under review by the department of public instruction, and is in accordance with the general usage that has followed its rulings. Code of Public Instruction, 263. It does not permit the absent or indifferent to neutralize the efforts of the public spirited and enterprising, but compels everyone who would make his influence effective to attend the meeting and vote in the manner provided by law.

In order to adopt a resolution such as that under consideration, the statute as we interpret it requires simply a majority of the qualified voters in attendance pursuant to legal notice, who actually vote upon the question submitted by answering “ aye ” or ■“no,” as the names of all present are called.

We think that the complaint was properly dismissed and that the judgment appealed from should be affirmed, with costs.

All concur, except Parker, J., dissenting.

       Affirming 24 St. Rep., 706.


author: Follett, Ch. J.

text:
    Herman C. Baskin et al., App’ts, v. Henry Huntington, Ex’r, et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed December 15, 1891.)

    Judgment—How enforced after death of debtor.
    No distinction is made in the statute as it existed prior to § 7S8, Code Civ. Pro. between judgments recovered on sole, on. joint or on joint and several contracts, nor is there any exemption of the land of a deceased surety contracting jointly and severally with a principal and against both of whom a judgment has been recovered.
    Appeal from an order of the general term of the supreme •court of the fifth judicial department, which reversed a judgment declaring a money judgment not a lien on plaintiffs’ land and restraining defendants from selling it by virtue of the judgment, with costs, entered on the report of a referee.
    February 22, 1875, Mary E. Huson as principal, and William It. Baskin and James L. Brewer as sureties, made their joint and several promissory note by which they promised to pay John T. Andrews and James Huntington, or bearer, $800, March 1, 1876, with interest. June 7, 1876, the payees in the note recovered a judgment thereon against the principal and sureties for $854.33, damages and costs. When the judgment was entered William It. Baskin owned land in the county of Yates on which the judgment became a lien. June 7, 1877, William R. Baskin died intestate, leaving the plaintiffs in this action, Lyman J. Baskin and Winifred E. Baskin, his children and only heirs at law and next of kin, and Eliza A. Baskin, his widow, who died November 21, 1879, Before this action was begun the plaintiffs had succeeded to the interests of Lyman J. and Winifred E. Baskin and now are the owners in fee of the lands of which William It. Baskin died seized. Whether he left personalty or whether letters of administration were issued on his estate does not appear. March 11, 1881, the plaintiffs in the aforesaid judgment (John T. Andrews and James Huntington) caused an execution to be issued thereon against the property of the defendants therein and March 14,1881, delivered it to Charles Bell, then the sheriff of the county of Yates. The referee finds that the execution directed the sheriff to collect the amount of the judgment with interest, in which it differs from the allegation in the complaint, wherein it is averred he was directed to collect $906.69 with interest on $854.33 from January 10, 1880. The sheriff had a deputy by the name of R. Baskin, to whom he delivered the execution. December 31, 1882, the official term of Charles Bell as sheriff expired, since which he has not held the office of sheriff, nor has Baskin the office of deputy sheriff. From January 1, 1883, until December 31,1885, Charles Speelman was sheriff of the county of Yates and from January 1, 1886, to December 31, 1888, Michael Pearce was the sheriff of said county. August 8, 1885, James Huntington, one of the plaintiffs in said judgment, died leaving a last will and testament which was duly probated and letters testamentary issued thereon to Henry Huntington; who is now acting as executor of said will.
    April 7, 1886, Charles Bell, as late sheriff, by B.' Baskin, deputy, advertised that he would, pursuant to the aforesaid execution, sell May 22,1886, all of the interest which William B. Baskin had in said land at the date of the recovery of the judgment. Mary B. Huson, the principal, and James L. Brewer, the co-surety, are insolvent.
    May 20, 1886, this action was begun to set aside the judgment and restrain the plaintiffs therein, the defendants herein, from selling the land of the plaintiffs under the execution. The case was tried before a referee on the pleadings and an admission, no evidence being given by either side, that William B. Baskin was a surety for Mary B. Huson on the note and had no part of its consideration. The counsel for the plaintiffs then moved for a judgment on the following grounds : (1.) “ That the defendant ex-sheriff Bell, who is seeking to enforce the judgment against the property of the plaintiffs, had not at the time he ceased to be sheriff of Yates county commenced the execution of the mandate or process by the collection of money thereon, or by seizure or levy.upon money or other property by reason thereof.” (2.) “Upon' the ground that by the death of William B. Baskin his estate and lands of which he died seized are discharged from the judgment.” (3.) “ That the judgment mentioned in the complaint has ceased to be a lien upon any lands of which William B. Baskin died seized.”
    The defendants moved to dismiss the complaint on the following grounds: (1.) “That it does not state facts which constitute a. cause of action.” (2.) “That all the relief asked for in the complaint could have been obtained by motion and that there was no-necessity for a resort to an action.” (3.) “ That the gravamen of the complaint is only such as would bind the defer dont Andrews,, and in no way affects or charges James Huntington, the testator, or the defendant Henry Huntington who is the executor of James Huntington.” The referee overruled the motion of the defendants, and granted the motion made in behalf of the plaintiffs and thereupon signed a decision containing findings of fact and conclusions-of law. He held that on the death of William B. Baskin his-estate was discharged from all liability on the judgment, and directed a judgment vacating and setting aside the execution and restraining the defendants from thereafter attempting to enforce the payment of the judgment or execution. The defendants excepted to this conclusion of law, and took an appeal to the general term, where the judgment was reversed and a new trial granted. Thereupon the plaintiffs appealed from the order to this court, stipulating that if it was affirmed, judgment absolute should be-, rendered against them, with costs.

      John Gillette, for app’lts; Martin J. Sunderlin, for resp’ts.

       Affirming 24 St. Rep., 874.

   Follett, Ch. J.

By statute, a judgment becomes a lien on the land of a judgment debtor which is within the county wherein the judgment is docketed, 2 R. S., 359, § 3, which is superseded. by Code Civ. Pro., § 1251, and a mode for enforcing the lien after the death of the judgment debtor is provided. Code Civ. Pro., §§ 1252, 1379, 1380, 1381. Sec. 1380 provides: “ After the expiration of one year from the death of a party against whom a final judgment for a sum of money, or directing the payment of a sum of money, is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living.” This provision was taken from § 1, chap. 295, of the Laws of 1850, so that it was a part of the statute law of this state when the obligation upon which the judgment was recovered was given. Ho distinction is made in the statute between judgments recovered on sole, on joint, or on joint and several contracts ; nor is there any exemption of the land of a deceased surety contracting jointly and severally with a principal and against both of whom a judgment has been recovered. The judgment was reversed, and William R. Baskin died before § 758 of the Code of Civil Procedure took effect.

The rule that a judgment revovered against two or more joint contractors may be enforced against the land of one of the debtors who has died and upon which it has become a lien, is recognized or declared in the following cases: Trethewy v. Ackland, 2 Saund., 48, see note; Reed v. Garvin, 7 S. & R., 354; Commonwealth v. Mateer, 16 id., 416; Stiles v. Brock & Co., 1 Pa. St., 215.

In the case last cited it was said: “ How, that one of two joint debtors dying is thereby discharged, both in person and estate, at. law, from the payment of a debt, is too well established to be controverted, unless the debt become a lien on his estate in his lifetime, in which latter case, the property on which the lien existed, may be taken to satisfy the debt.”

We are not called upon to determine whether the judgment which the defendants are seeking to enforce against the realty on which it became a lien can be collected out of the other property of the deceased surety, for no such attempt has been made. It is unfortunate that the record does not show whether this execution was issued pursuant to §§ 1379, 1380 and 1381 of the Code of Civil Procedure, and also that it does not disclose whether the sheriff had begun to execute the execution by the collection of money thereon as provided by §§ 184 and 186 of the Code of Civil Procedure. The record does not enable us to determine whether the execution is a legal lien, nor, if it is, whether the defendant, ex-sheriff Bell, is in a position to make a valid sale by virtue of it. Whether a purchaser can acquire title under a sale made under this process by the ex-sheriff must be left undetermined until the question arises and the necessary facts are before the court.

The order should be affirmed and judgment absolute rendered against the appellants, with costs.

All concur.


author: Haight, J.

text:
    Henry H. DuBois, Resp’t, v. William M. Decker, App’lt.

      (Court of Appeals, Second Division,

      Filed December 15, 1891.)

    1. Physician—Malpractice.
    While a physician and surgeon will not be held liable for mere errors in judgment, his judgment must be founded upon his intelligence. He engages to bring to toe treatment of his patient care, skill and knowledge, and should know the probable consequence following from the crushing of toe bones and tissues of the foot, and where he waits ten days before amputating, and then after six days gangrene having set in amputates again and neglects to save flap enough to cover the end of the bone, the question of his liability is one for the jury.
    2. Same—Failure to obey physician’s instructions.
    Whilst the removing of the limb from the position in which it was placed may have produced the bleeding and thus to some extent impeded the healing, and his leaving the hospital at the time had aggravated the difficulty, these facts would only tend to mitigate the damages and would not relieve defendant from the consequences of previous neglect or unskillful treatment.
    3. Same.
    The fact that a surgeon is employed by the city as one of the physicians to attend and treat toe patients that should be sent to the alms-house, and that he is paid by the city instead of the patient, does not relieve him from the duty of exercising ordinary care and skill.
    Appeal from a judgment of the general term of the supreme court, third department, affirming a judgment entered upon a verdict at the Ulster circuit

      A. T. Clearwater, for app’lt; William D. Brinnier and S. T. Hull, for resp’t

       Affirming 22 St. Rep., 274.

   Haight, J.

This action was brought to recover damages of the defendant, a physician and surgeon, for alleged malpractice suffered by the plaintiff whilst undergoing treatment as a patient.

On the first day of December, 1889, the plaintiff undertook to jump onto an engine of the Ulster & Delaware railroad in the city of Kingston, and in doing so slipped, and his left foot was caught by the tender and a portion thereof crushed. Being destitute he was taken to the city almshouse, where he was treated by the defendant, who was one of the city physicians, having the care of the patients therein and who was employed for that purpose. Thereafter, and on the 10th day of December, he amputated the plaintiff's leg above the ankle joint, and six or seven days thereafter, gangrene having set in, he again amputated the leg at the knee joint. After the second amputation the leg did not properly heal, but became a running sore, and at the time of the trial the bone protruded some three or four inches.

Evidence was given upon the trial from which the jury might find that the bones of the foot were so crushed that immediate amputation of the injured portions was necessary, and that the appearance of gangrene was in consequence of the delay of ten days in the operation; and that in the second operation the defendant neglected to save flap enough to cover the end of the limb and bone, and that the subsequent protrusion of the bone was owing to„ this neglect

The question of the defendant’s liability consequently became-one for the jury. We are aware that he claimed to have waited ten days before operating for the purpose of seeing whether the foot could not be saved, and that a physician and surgeon will not be held liable for mere errors in judgment. But his judgment must be founded upon his intelligence. He engages tabling to the treatment of his patient care, skill and knowledge, and he should have known the probable consequences that would follow from the crushing of the bones and tissues of the foot.

In submitting the case to the jury, the defendant asked the court to charge that “ if the plaintiff did not obey the defendant’s-instructions, and this contributed to an aggravation of the injury, the plaintiff cannot recover.” The court declined to charge “ in the-form in which the request was put,” and an exception was taken by the defendant.

It appears from the testimony of the defendant that after the second amputation he dressed the stump and put the plaintiff in position by elevating the limb so as to prevent hemorrhage and too much pressure upon the arteries; that the plaintiff did not keep in the position m which he was placed and got his leg to bleeding, and that he presumed that this bleeding interfered with the healing of the limb. It also appears that sometime after the second amputation the plaintiff refused and neglected to take the medicine that was left for him by the defendant, and that subsequently, after the defendant had ordered him to be removed-to another room so as to avoid liability of contracting erysipelas from a patient that had been brought to the alms-house afflicted: with that disease, he left and went away.

Whilst the removing of the limb from the position in which it. was placed may have produced the bleeding, and thus, to some extent, impeding the healing, and his going away at the time that he did may also have further aggravated the difficulty, these facts would only tend to mitigate the damages and would not relieve the defendant from the consequence of previous neglect or unskillful treatment. As to the prescription, we are not told what it was or what it was for, and the jury was, therefore, unable to determine whether or not the condition of the patient would have been materially changed by its use.

The request to charge, as we have seen, was to the effect that if the plaintiff did not obey the instructions, and this contributed' in aggravation of the injury, the plaintiff cannot recover. This was too broad if the jury found that the defendant was guilty of malpractice prior to the disobedience complained of.

In the case of Carpenter v. Blake, 75 N. Y., 12, the court was requested to charge that if the plaintiff was guilty of any negligence in the management of the arm through or without the fault of the attending surgeon, after the defendant ceased to have charge of the case, and such negligence contributed in any material degree to produce the present bad condition of the arm, the defendant was not responsible. This request was refused, and it was held properly, for the reason that the request was too broad ; that if there had been subsequent negligence, the cause of action for defendant’s negligence would simply go in mitigation of damages.

In the case of McCandless v. McWha, 22 Pa. St., 261-272, Lewis, J., in delivering the opinion of the court, says: “ A piatient is bound to submit to such treatment as his surgeon prescribes, provided the treatment be such as a surgeon of ordinary slcill would adopt or sanction ; but if it be painful, injurious and unskillful, he is not bound to peril his health, and perhaps his life, by submission to it. It follows that before the surgeon can shift the responsibility from himself to the patient, on the ground that the latter” did not submit to the course recommended, it must be shown that the prescriptions were proper and adapted to the end in view. It is incumbent on the surgeon to satisfy the jury on this point, and in doing so he has the right to call to his aid the science and experience of his professional brethren. It will not do to cover his own want of skill by raising a mist out of the refractory disposition of the patient.”

The defendant moved todismissthe complaint upon the ground that it failed to show a contract relation between the parties whereby the defendant was employed to attend the plaintiff, and that no facts were alleged showing it to be the duty of the defendant to treat him in a skillful manner. This motion being denied, the defendant asked the court to charge that as the defendant treated the plaintiff gratuitously he is liable, if at all, only for gross negligence ; which was refused.

It has been held that the fact that a physician or surgeon renders services gratuitously does not affect his duty to exercise reasonable and ordinary care, skill and diligence. McCandless v. McWha, 22 Pa. St., 261-269; McNevins v. Lowe, 40 Ill., 209; Gladwell v. Steggall, 5 Bing. N. C., 733.

But we do not deem it necessary to consider or determine this question, for it appears that the plaintiff’s services were not gratuitously rendered. He was employed by the city as one of t the physicians to attend and treat the patients that should be sent to the almshouse. The fact that he was paid by the city instead of the plaintiff did not relieve him from the duty to exercise ordinary care and skill.

Exceptions were taken to the admission and rejection of evidence. We have examined them and find none that require a new trial.

The judgment should be affirmed, with costs.

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


author: Finch, J.

text:
    In the Matter of the Application of Union College.

      (Court of Appeals,

      Filed December 22, 1891.)

    1. Taxes—Water rates—Right of taxpayer to be heard.
    It is the right of a taxpayer to pay no more than his just proportion, and the legislature cannot arbitrarily determine the amount, refusing to the person assessed opportunity to he heard.
    2. Same—Remedy.
    The statute of 1886 provided that where the invalidity or irregularity of any-tax or assessment or water rates or rents appears upon the face of the proceedings, any party in interest could apply by petition to any court of competent jurisdiction to cancel the same. Held, that whether the lands were vacant or had buildings on them, and even whether the water was used or not, were totally immaterial so long as the rolls imposed a tax.
    3. Same—Laches.
    The limitation in the statute of the time in which to bring action applies only to subsequent taxes and assessments.
    Appeal from judgment of the supreme court, general term, .second, department.

      E. Nott Anable, for app’lts; Geo. W. Stephens, for resp’ts.
   Finch, J.

The petitioner instituted this proceeding to procure the cancellation of certain assessments upon his property in Long Island City, known as water rents or lot rates, upon the ground that the enactment by virtue of which they were imposed was unconstitutional. The city charter, as it stood in 1871, chap. 461, title 10, created a "board of water" commissioners empowered to supply the city with water, using for that purpose proceeds of bonds authorized to be issued, and at liberty to lay the pipes through any of the streets of the city. The bonds represented the water debt of the city, and the commissioners were directed to ■establish a scale of water rents to be charged against and paid by the owner or occupant of all buildings situated on lots adjoining any street through which the distributing pipes should be laid ; ■such rents to be paid annually in advance, and apportioned with reference to the character and location of the buildings. It was further provided that the aggregate of such water rents should be at least equal to the accruing interest upon the water debt. For the collection of these rents the commissioners were required to make an “assessment roll for said city,” placing in one column the name of the owner or occupant of any building or vacant lot chargeable with water rent; in a second column the number of the building or lot; and in the third the amount of water rent assessed upon such building or lot. The commissioners were then to file such roll in the office of their clerk, publish notice of that fact in one or more newspapers of the city, and deliver the roll with their warrant attached to the collecting officer. Uo hearing or opportunity for a hearing was allowed to the owners or occupants assessed, ■and their only privilege was to pay. The body of this act did not in terms assess vacant lots, although the prescribed form of the rolls assumed their liability. That difficulty was remedied by later amendments. Laws of 1875, chap. 415; Laws of 1879, chap. 100, § 4; Laws of 1881, chap. 684. These imposed -the water rents upon vacant lots, as well as those occupied by -buildings, and irrespective of the question whether the water was used or not. It is quite plain that these water rates were-taxes assessed against the owner or occupants. The area of assessment was the line of distributing pipes assumed to have-benefited the adjoining property, and the aggregate to be raised at least the interest upon the water debt.

The apportionment among the taxpayers was, by the act of' 1875, to be in proportion to the areas of the respective lots, and not to exceed one-fifth nor be less than one-tenth of one per cent, per square foot of such areas. Ho taxpayer was, in any manner,, allowed to be heard either as to that arbitrary basis of apportionment which took no account of values, or even as to its determination within the boundaries of the commissioners’ discretion. These provisions are almost identical with those contained in the Brooklyn acts which came under discussion in Remsen v. Wheeler, 105 N. Y., 573 ; 8 St. Rep., 202, and were held to be invalid for their violation of the constitutional right of the individuals assessed to notice and a hearing. The original assessments in the-present case were held invalid for the same reason.

Two efforts were subsequently made to restore their vitality. By chap. 383 of the Laws of 1882, it was enacted that these-taxes imposed previous to 1880 should, so far as unpaid,.be-charged and assessed as originally made, the statute adding “the true intent and meaning of this act being to make such taxes in-all respects legal and valid, and the same are hereby in all respects-so confirmed and levied.” The theory of the act seems to have-been that an unconstitutional law can be validated by simply repeating it, and that the vice of an assessment without a hearing- is no worse than some formal omission which may be excused because it was not originally essential. The act of 1882, therefore,, does not change the situation.

The act of 1886, chap. 656, again attempts to ratify and confirm the unconstitutional assessments, without curing their inherent defect; and both acts are now sought to be sustained upon the doctrine of Spencer v. Merchant, 100 N. Y., 585, and 125 U. S., 345, as a direct assessment by the legislative authority. That' case held that the legislature might fix the aggregate amount of tax to be raised and the area of assessment upon which it should be imposed, but carefully avoided any ruling that the apportionment of the tax among the persons assessed, which fixes the-amounts of the several liabilities, and establishes a charge for-which the property is held and may be taken, can also be accomplished without notice or a hearing on the part of the taxpayer.

Indeed, the opinions of both courts assume such notice as a necessity, and the reasons therefor are clear and obvious. In fixing the aggregate sum to be raised and the area of property which shall pay it the legislature determines a public question, and upon considerations of the public interest and welfare. The specific rights of any particular individual are not involved, and until they are he "has no right to interfere except in the general -way which is common to every citizen. But when the public questions are settled and the tax comes to be apportioned, a personal liability of the individual and a lien upon his property are initiated .-and he has a right then to be heard upon all the questions which affect and determine that liability. His right is to pay no more 'than his just proportion, and the legislature cannot arbitrarily determine the amount, refusing to the person assessed a reasonable 'opportunity to be heard. Both of the validating acts are open to "this objection. While they were sufficient to cure defects of one ■character, they were not capable of infusing life into a law which the legislature had. no power to make.

The water rates, therefore, which the petitioner sought to can-cel, were void and illegal, and he was entitled to the relief sought unless he selected the wrong remedy or delayed until it was too ■late. These objections remain to be considered.

The act of 1886 provides (sec. 10), that “ where the invalidity •or irregularity of any tax or assessment or water rates or rents appears upon the face of the proceedings, any party in interest may apply by petition to any court of competent jurisdiction for .an order cancelling the same.” It is urged that this remedy, which the petitioner has invoked, is inapplicable because it may Ibe that the lots were not vacant, and the contrary does not appear upon the face of the proceedings. The assessment rolls are not printed in the return. Their form as dictated by the charter would show on the face of the roll whether the rates were assessed ■against a building or a vacant lot and we must assume that the lact appeared in the proper column.

The petitioner’s affidavit asserts that all the lots were vacant, and his assertion is not effectually denied. The fact itself, with táhe forms prescribed by the charter, justify the assumption that the character of the property appeared according to the truth. But I am also of opinion that whether the lands were vacant or had buildings upon them, and even whether the water was used ■or not, are totally immaterial so long as the rolls imposed a tax. That they merely registered a voluntary contract for the use of ?the water is wholly inconsistent with their character as assessments imposed by a taxing power and wholly independent of the ■citizen’s consent.

But it is further claimed that the proceeding instituted by the petitioner is barred by his delay. The provisions of the act of 1882 did not in any manner cut off his rights. By § 11 of that ■act any proceeding to test the validity of a sale, or any defense to any action or proceeding founded on the tax, must show an assault upon it within one year after the passage of that act. But there has been no sale and no proceeding to enforce a sale which made necessary the defense referred to. Section 18 of the same act relates only to .irregularities in the levy resulting from the acts or •omissions of city officers or departments. I see nothing in the act which barred the right of the petitioner to sue for a cancellation of the assessment or resist the seizure of his property, if that should happen before a sale. But it is § 10 of the act of 1886 which is specially cited on behalf of the city. That provides that any action or proceeding by any person or corporation to test the validity or regularity of any tax'levied or assessment or water rates or rents made, 'shall be commenced within one year from the time of the delivery of the roll in -which said tax or assessment or water rates are contained to the said treasurer.” No rule of statutory construction authorizes us to treat this provision as retroactive, and intended to operate upon and destroy existing rights. To ratify in form an unconstitutional act and then by retrospective legislation cut off all power of resistance is a measure neither tolerable nor possible. Many years had already elapsed when the act of 1886 was passed since the delivery of the rolls to the treasurer, so that the construction asserted would take away all remedies existing and applicable. No such construction is admissible and to adopt it would make the remedy by petition given in the same section a mere mockery. The limitation is applicable only to subsequent taxes and assessments. 1 think, therefore, that the special term was right and the general term wrong. •

The order of the general term should be reversed and that of the special term affirmed, with costs.

All concur.

       Reversing 28 St. Rep., 983.


text:
    In the Matter of the Application of Roswell P. Flower. In the Matter of the Application of The Trustees of Union College to cancel, etc.

      (Court of Appeals,

      Filed December 22, 1891.)

       Reversing 28 St. Rep., 80.

   Finch, J.

This appeal involves the same questions presented in the Matter of the Application of Union College to cancel, etc., and should receive the like disposition.

The order of the general term should be reversed and that of the special term affirmed, with costs.

All concur. _


author: Ruger, Ch. J.

text:
    Charles H. Dyett, Assignee, Resp’t, v. Samuel P. Hyman et al., App’lts.

      (Court of Appeals,

      Filed December 22, 1891.)

    1. Attachment—Liability oe indemnitors.
    Indemnitors upon a bond given to the attaching officer, to hold him harmless against the consequences of a wrongful seizure and removal, are jointly and severally liable with the sheriff for the damages occasioned by the trespass, and they cannot by any arrangement between themselves prejudice the rights of an injured party in the prosecution of those who committed the trespasses upon his pioperty.

      2. Same—Code Civ. Pro., §§ 1421-1433.
    Code Civ. Pro., §§ 1421 to 1423, simply authorize the indemnitors to apply to the court for permission to defend an' action in the place of the sheriff, and do not in any respect vary the rights of the plaintiff in the prosecution of his action.
    3. Same—Evidence.
    In an action brought by an assignee for creditors, against the indemnitors upon the bond of a sheriff who lias wrongfully seized the assigned property, a judgment in a former action brought by the defendants to' set aside the assignment as fraudulent is admissible in favor of said assignee, plaintiff.

      4, Same—Discontinuing action.
    The plaintiff has the right in such an action, by leave of the court, to discontinue the action as to any or all of such defendants as he chose.
    Appeal from judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff entered, upon a verdict directed by the court in an action to recover damages for trespass de bonis asportatis.

      Alex. Blumenstiel, for app’lts; B. F. Einstein, for resp’t.

       Affirming 37 St. Rep., 251.

   Ruger, Ch. J.

The plaintiff brought trover, as assignee in a general assignment by Kapp for the benefit of his creditors, against the defendants Hyman, Morris, Stroock and Baffin to recover damages for the taking and conversion of certain personal property. The defendants admitted the execution of the assignment, but justified the taking by a sheriff under certain attachments issued against the property of said Kapp by a justice of the supreme court, and an averment that the property taken belonged to said Kapp. The allegations of the answer were probably insufficient to raise the question of fraud in the assignment, under the authorities, Weaver v. Barden, 49 N. Y., 287, but, inasmuch as the parties proceeded to try that issue without objection, we regard it as legitimately in the case.

The claim that the assignment was void for fraud and conferred no title upon the plaintiff, constituted the only affirmative defense stated in the answer. The execution of the assignment and the taking of the property by the sheriff were specifically alleged in the complaint and admitted by the answer.

Upon the trial the plaintiff proved the execution and delivery of the assignment; the taking of the property from plaintiff’s possession on September 1, 1884, by the sheriff on attachment in favor of the defendant Hyman and others, and its subsequent sale by him and the execution and delivery of a bond to the sheriff, dated September 2, 1884, signed by Hyman as principal and Morris and Stroock as sureties, indemnifying him against all loss or damage in consequence of the levy, seizure and sale on Hyman’s attachment of the property referred to in the complaint. The plaintiff also proved a judgment dated December 13, 1887, rendered in a creditor’s action in the supreme court, brought by the defendants Hyman and Morris against Kapp and Dyett, the assignor and assignee, in favor of the defendants therein, wherein it was adjudged that the assignment of Kapp and Dyett wan not made with intent to hinder, delay or defraud creditors, and was, in all respects, valid as against said Hyman and Morris and all other creditors of'said Kapp. This judgment operated as conclusive evidence of the validity of the assignment, and estopped the defendants from showing anything to the contrary in this action. It does not, therefore, admit of any doubt but that the plaintiff made out an unexceptional case to recover against the defendants, Hyman and Morris. Their liability for the original trespass committed by the sheriff was presumptively established by their approval and satisfaction of his act, manifested by the execution of a bond of indemnity to him. The sale of the property was secured by.this bond, and the defendants were thereby shown to have exercised a controlling authority over the action of the sheriff in procuring the consummation of the wrong complained of, and thereby made themselves liable as principals for the original unlawful taking. Herring v. Hoppock, 15 N. Y., 411; Ball v. Loomis, 29 id., 412; Ford v. Williams, 13 id., 584.

The defendants, who thus participated in the original wrong, were jointly and severally liable with the sheriff for the damages occasioned by the trespass. The plaintiff could have elected to sue one or more of the defendants, and it did not operate as a defense to the action brought by him to show that there were other persons liable for the same trespass who were not joined as defendants in the action. Wehle v. Butler, 61 N. Y., 245; Rose v. Oliver, 2 Johns., 365.

It is urged by the appellants that no cause of action was made out against the defendants, for the reason, as is claimed, that they had the right, as indemnitors, to be substituted as defendants in the place of the sheriff, Code Civ. Pro., §§ 1421 to 1423, and they argue that in case such substitution had been permitted by the court the indemnitors would have been liable for such damages only as they would have been subjected to in an action by the sheriff upon their bonds of indemnity, and that the same r-ule of liability should be applied to them in this action. This claim is founded in a misapprehension of the meaning and effect of the provisions of the Code referred to, and of the extent of the liabilities incurred by joint wrongdoers. Parties who are jointly and severally liable to the owner for damages arising out of an unlawful taking of property cannot, by any arrangement between themselves, prejudice the rights of an injured party in the prosecution of those who committed the trespasses upon his property. Hanmer v. Wilsey, 17 Wend., 92; Williams v. Sheldon, 10 id., 654. Such arrangements are res inter alios, to which the owner has never consented, and by which he cannot be bound. The sections of the Code referred to simply authorize the indemnitors to apply to the court for permission to defend an action in the place of the-sheriff, and do not, in any respect, vary the rights of the plaintiff in the prosecution of his action. If the owner, on the trial, proves a good cause of action against the sheriff, the indemnitors, by virtue of such substitution, become liable in his place for the damages occasioned by his unlawful taking. If the act of permitting the substitution impaired in any material respect the right of the owner to recover in the action, it would furnish a conclusive reason why the substitution should not have been permitted. The plaintiff’s cause of action against a wrongdoer is a right of property, and can be taken from him only by due process of law. If these provisions authorize the court to deprive him of a lawful remedy against one and compel him to prosecute others, against whom he has no cause of action, they are open to the objection that they authorize the talcing- of property in violation of the provisions of the constitution. It is only upon the theory that by a substitution of parties the owner is afforded an equivalent remedy for the wrong done him against other responsible parties, that the legislation in question can find any justification. Hayes v. Davidson, 98 N. Y., 23.

The theory presented by the appellants in this case, that the defendants are liable as indemnitors only, and are governed by the provisions of their bond, is wholly unfounded. The liability of the defendants rests wholly upon their participation in the original wrong and their liability for its consequences incurred by reason of their complicity in the trespass. This, it is true, is evidenced by the bond of indemnity which authorized the sheriff to consummate the original wrong by an unlawful sale and conversion of the plaintiff’s property, but in no sense constitutes an action upon the bond. We are, therefore, of the opinion that the plaintiff made out a good cause of action against the defendants, and that the court committed no error in directing a verdict for the plaintiff.

The defendants, however, made some objections to the admission of evidence against them, and, among others, to the introduction of the judgment roll in the action of Hyman and Morris against Kapp and Dyett, and took an exception to the ruling of the court thereon, and now urge this exception as a reason why the recovery in this case should not stand. The first point made to its admission was that it was immaterial and incompetent. The only ground now suggested why the ruling was incorrect is the claim that the defendants Hyman and Morris do not appear in the two actions in the same character, and that what was adjudged against them in one action should not be used against them in the other. The argument is that they appeared in the first action as judgment creditors and in this as indemnitors. The answer to this argument is that it has no foundation in fact, as they appear in both actions in their individual character and not in any representative capacity. The fact that in the first action it was essential that they should show a judgment and a return of execution thereon unsatisfied, in order to sustain an action to reach equitable assets, did not affect the character of the action. Neither did the fact that the plaintiff has resorted to a bond of indemnity to prove their participation in the tort, which is the basis of this action, affect the ground of their liability for such tort. In either case they represent individual interests and are liable as individuals only in such actions.

The second objection was that it was inadmissible against the defendants Strooek and Ballin because they were not parties to it. This objection furnished no reason why the evidence was not competent against Hyman and Morris; but was, undoubtedly, a good reason why Strooek and Ballin should not be prejudiced by it. The court admitted the evidence as against Hyman and Morris alone, and as against them it was, undoubtedly, competent. If, for any reason, Strooek and Ballin could have been prejudiced by its admission, it is enough to say that they are not now parties to the suit, the plaintiff having on the trial discontinued the action as to them, and they cannot now avail themselves of any errors which have not operated to their prejudice. It was also claimed that the evidence was not admissible as against Morris: and the ground of this objection was the claim that he represented different characters in the two actions and was not bound in one for any adjudication made in the other. We have already seen that this claim is not tenable.

After the close of the evidence the plaintiff asked leave to discontinue the action as to Stroock and Baffin, upon payment of costs. The defendants’ counsel, Mr. Blumenstiel, objected to the motion, but it was granted by the court and the action was thereupon discontinued. No ground of objection to the motion was stated by Mr. Blumenstiel; neither does it appear in whose behalf he interposed the objection. It can hardly be supposed that Stroock and Baffin objected to be relieved from, their liability in the action, and Hyman and Morris had no reason for objecting to such discontinuance, as they had no legal right to require that Stroock and Baffin should be continued as defendants in the action. The plaintiff, had the right originally to sue one or more of the joint wrongdoers, and hold them at his option either severally or jointly; and it necessarily follows- from such right that hc-could, at any time, by leave of the court, discontinue the action as to any or all of such defendants as he should elect. Williams v. Sheldon, 10 Wend., 654; Lord v. Tiffany, 98 N. Y., 412.

It is also claimed by the appellants that, even though the -original taking by the sheriff was wrongful, if the property was afterwards seized upon valid process against the owner and its proceeds applied to his benefit, such facts could have been proved by the defendants in mitigation of damages. No such questions, however, are presented by any exception or request made in the case. This defense was not set up in the answer or attempted to be proved by evidence. The facts in evidence in the case are not only very far from establishing any such defense, but they. positively overthrow it. Such a defénse in any action can arise only when the general property in the goods still remains in the debtor and the application of the proceeds is made for his benefit. See Hanmer v. Wilsey, supra ; Roberts v. Stuyvesant Safe Dep. Co., 123 N. Y., 57; 33 St. Rep., 175.

Here, however, so far as the assets are concerned, it is conclusively proved that the assignor was the owner of the property, and it is uncontradicted that the proceeds of the property were never appropriated to his use or benefit. It is, however, quite unnecessary to discuss this aspect of the case, as it is not in any way presented by the record. The defendants’ counsel requested the court to be permitted to go to the jury on the facts; but he omitted to state what facts he supposed they had a right to consider. We are now unable to see any evidence upon which he was entitled to ask for a verdict.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: Per Curiam

text:
    Lazarus Belfer, Resp’t, v. Morgiana Ludlow et al., App’lts.

      (Court of Appeals,

      Filed December 22, 1891.)

    Appeal—Jurisdiction op court op appeals.
    Plaintiff contracted to do tlie glazing in eight houses for $875, did the work and filed a mechanic's lien. Prior to the filing all the houses had been sold except three. In an action to foreclose his lien plaintiff recovered for the glazing done on the three houses, $314. Held, that the amount involved was insufficient to give this court jurisdiction of the appeal.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for $314 in favor of plaintiff, for a balance due upon a contract for glazing, amounting to $875, for which plaintiff had a mechanic’s lien upon eight houses, upon the foreclosure of which said judgment was obtained.

      Horace Graves, for app’lts; William J. Gaynor, for resp’t

       See 37 St. Rep., 704.

   Per Curiam

The amount involved in this controversy is insufficient to give this court jurisdiction of the appeal.

The damages awarded against the appellants were but little over $300 and fall short of the- amount authorizing an appeal to this court.

The appeal should, therefore, be dismissed, with costs.

All concur.