author: Me Adam, J.

text:
    Walter B. Ripley, Resp’t, v. The Second Avenue Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed April, 1894.)

    Teial—Charge.
    In an action against a street railroad for negligence, it is proper for the trial judge to comment, in his charge, on the failure of the defendant to produce the conductor and driver as witnesses.
    Appeal by defendant from judgment entered on verdict in favor of the plaintiff, and from order denying motion for new trial.

      Merrill & Rogers, for app’lt ; Morse, Koones & Findlay, for resp’t.
   Me Adam, J.

It appears that on September 3rd, 1891 the plaintiff was a passenger upon one of the defendant’s open cars on a trip to the Fulton ferry. At Beekman street, he told the conductor he wanted to get off at the ferry. As the car did not stop, the plaintiff stood up and while in the act of hailing the conductor, the car struck the curve on the switch, and the rapid and unexpected twisting motion of the car jostled the plaintiff down upon the step running along the side of the car, and his foot "was crushed by the hub of a truck with which the car collided, causing the injuries complained of. The plaintiff occupied the rear seat which faced the end of the car, and the conductor at the time the plaintiff arose was in the front part of the car attending to the indicator dial, so that the plaintiff could not attract the conductor’s attention, except by arising in the manner he did. He was merely exercising a lawful right and apparently guilty of no negligence whatever, when the jolting of the car without any warning to him threw him off, whereby he suffered injury, etc.

The questions of negligence on the part of the defendant, and the absence,of contributory negligence on the part of the jury were by the verdict of the jury found upon satisfactory evidence in favor of the plaintiff, and they assessed his damages at the moderate sum of $700.

The only material exceptions urged are: (1) The court’s refusal to dismiss the complaint. (2) That the trial judge commented in his charge on the failure of the defendant to produce as witnesses the conductor and driver. The case was essentially one for a jury, so that the first exception is without merit. The second is equally without force for the comment was proper. It was a mere reference to a circumstance true in point of fact, and made in accordance with the rule that where a prima-facie case is made out by a plaintiff, it is strengthened by the failure of the defendant to produce material evidence peculiarly within his knowledge and control. Smith v. Gunn, 35 St. Rep., 429; Gibson v. National Park Bank, 98 N. Y., 95; People v. Briggs, 47 Hun, 266; 13 St. Rep., 365; aff’d, 114 N. Y., 56; 22 St. Rep., 317.

For these reasons, the judgment and order must be affirmed, with costs.

Freedman, J., concurs.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Pascal P. Pratt, Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Evidence—Opinion—Easement op access.
    In an action for interference with access to abutting premises by reason of the operation of a railroad in front thereof, opinions as to the rental value of such premises are inadmissible. 1'

      2. Same—Objection.
    In such case, an objection that it it speculative and not the proper method of proving damages, is sufficient.
    3. Appeal—Nominal damages.
    Judgments will not be reversed to allow a party to re-try a cause of action where only nominal damages are involved.
    Appeal by the defendant from a judgment entered in Brie county on the 10th day of October, 1892, and from an order denying a motion for a new trial.

      James F. Gluck, for app’lt;" Shermon S. Pogers, for resp’t.
   Lewis, J.

The plaintiff is the owner of a lot 216 feet front abutting on the southerly side of a street in the city of Buffalo, known as the Terrace. He is also the owner, as tenant in common of the undivided one-half of the fee of the street in front of his said lot. The defendant, in the year 1879, wrongfully entered upon said street and constructed therein in front of plaintiff’s said premises two railroad tracks and has ever since maintained such tracks and operated trains thereon. The plaintiff "brought this action against the defendant and claimed in his complaint that, by reason of the presence of said tracks and the. operation of trains thereon, access and egress to and from his said premises had been interfered with and rendered hazardous, and that the rental value thereof had been thereby depreciated and greatly injured to his damage. He recovered a verdict of $12,000. The defendant claims that the judgment should be reversed because of errors committed upon the trial

The plaintiff was called as a witness in his own behalf and testified to the rental values of his property with the railroad in the street. He was then asked the following questions : “ What, in your j'udgment, Mr. Pratt, would be the rental value of that property during the years from 1885 to 1891 with the railroad absent ? ” Mr. Cluck: “That I object to, on the ground that it is incompetent, improper and speculative, and not the proper method of proving damages.” The question was not then answered ; the witness went on to give a review of the changes in the location of the retail business in the city, showing that it had, during the time that defendant had maintained said tracks, moved up town and in a measure away from the plaintiff’s premises. The •question was repeated and before any objection was interposed the witness answered :■ “ Ten thousand dollars.” Counsel for the defendant, immediately thereafter, said : “ I object to that, on the ground that it is incompetent and improper, and. that the proper foundation has not been laid for the asking of that question ; that was speculative and not the proper method of proving damages.” The objection was overruled and the defendant excepted. The court, thereupon, asked the question : “ Ten thousand dollars per year?”. The witness answered: “Yes, sir.” The witness evidently answered the question propounded by the plaintiff’s counsel, before the defendant’s counsel had time to interpose his objection, and we think it must be held that the objection was timely made. It is the contention of the defendant’s counsel that the question was improper, as it called for the opinion of the witness; and that presents one of the questions for our decision. The competency of such evidence has been discussed of late by the court of appeals. McGean v. Manhattan R. R. Co., 117 N. Y. 219 ; 27 St. Rep. 337; was an. action brought to recover damages for damages occasioned to the easements of air and light and access to the property of the plaintiff by the erection and maintenance of an elevated railroad in a street of the city of New York. The court held that the opinions of witnesses, as to the causes which occasioned the decrease of rental values, as well as the amount of damages done therebjr, were improper; that witnesses must state facts and not draw conclusions or give opinions. The question was again before the court of appeals in Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455 ; 40 St. Rep. 454. The prevailing opinion elaborately reviews the authorities upon the question of the adrnisibility of such evidence, and it was held to be inadmissible; and the doctrine of McGean v. Man. R. R. Co., supra, was commented upon and approved as laying down the correct rule. The court of appeals has since steadily adhered to this rule of evidence and has reversed numerous judgments because-of the admission of such evidence. Our attention is called to the case of Rumsey v. N. Y. & N. E. R. R. Co., 133 N. Y. 79 ; 44 St. Rep. 248, as laying down a different rule. While some remarks made in the opinion of the court might be construed as conflicting with the cases heretofore cited, we do not understand that this precise question was before the court for decision, and we assume they did not intend to disturb the doctrine so carefully and deliberately laid down in the Roberts case. This rule was again announced in Hunter v. Man. R. R. Co., 141 N. Y. 281; 57 St. Rep. 400, and seems to be so well settled as to be no longer open for discussion.

We, therefore, come to the question, whether the grounds of the objection to the evidence are sufficiently broad and specific, so as to avail the appellant upon appeal. The grounds stated were, that it was incompetent and improper ; that the proper foundation had not been laid for asking the question ; that it was speculative and not the proper method of proving damages. The grounds of the objection in the case of McGean v. Man. R. R. Co., supra, were that the evidence was incompetent, irrelevant, hypothetical and the witness not competent to give an- opinion. The court held that they were not sufficiently specific to raise the question as to the admissibility of the evidence, and remarked : “ The objections seem to imply that opinions were competent on the subject. The trial seems to have been conducted on both sides and more particularly on that of the defendant, upon the theory that all opinions were admissible as to rental value of the premises and the causes which affected it.

In Carter v. N. Y. El. R. R. Co., 134 N. Y. 68; 45 St. Rep. 848, the grounds of the objection were that it was immaterial, incompetent and hypothetical, and that the difference in value was not the measure of damages. It was held that the objection was not sufficiently specific. In Ward v. Kilpatrick, 85 N. Y. 416, it was held that the objection that the witness was nota competent judge and the inquiry involved a conclusion of law, would not answer.

In the Roberts case, supra, an objection that the evidence was incompetent; that it was for the'court alone, and not for the witness, to determine the amount of damage, was held to be suffic’ent, as it called the attention to the vice in the question, that is, that it made the witness the judge of the damages,' while that was the province of the court or jury. In the case at bar, in addition to the grounds which were held not to be sufficient in the cases cited, there was added, “ That it was speculative and not the proper method of proving damages.” It was held in the-Roberts case that the-objection that the evidence was “speculative” was sufficient. Judge Peckham, in his opinion, says: “ it is. speculative upon the very question and upon the only question which the court or the jury is called upon to decide, and the question calls for the opinion of the witness upon the very subject; it. had, as eve have seen, been held that the word “ hypothetical ” was not sufficiently, specific. This rule was approved in Doyle v. Man. R. R. Co., 128 N. Y. 494 ; 40 St. Rep. 474. As to the second ground stated, all agree that the true-measure of damages was the difference between the rental value of the premises with, and their rental value without the railroad present in the street. The defendant’s objection was to the method the plaintiff was pursuing to prove his damages. If the objector intended by his objection to raise the question of the propriety of that rule, or theory or method of proving the damages, it was-clearly insufficient, for the plaintiff was entitled to prove such difference by competent evidence. If, on the other hand, the ground of the objection was sufficiently specific to call attention to the point that the opinion of the witness, as to the amount of damages, was not admissible but that the witness should state facts and not draw conclusions, it was sufficient. It was for the counsel making the objection to state his grounds so specifically that the exact point would be presented, so that the form of the question could, if,desired, have been so changed as to have avoided the objection. In the absence of an authority we might entertain some doubts as to the latter ground of the objection being sufficient, we find, however, upon reference to the case of Kernochan v. N. Y. El. R. R. Co., 128 N. Y. 559; 41 St. Rep. 110, that this same ground of objection to such evidence was sufficient. Upon the strength of these authorities we are constrained to hold that the defendant’s odjection was sufficiently specific, and that it was reversible error to admit the evidence. The complaint alleged that the plaintiff owned the entire fee of the street in front of his premises; the proof was that he owned the undivided one-half only, the defendant was permitted, upon the trial, to amend his answer, setting up the non-joinder of the other tenants in common with the plaintiff.

The defendant asked, at the close.of the case, for a dismissal of the action because it appeared that the plaintiff was not the sole owner of the fee in the street. The plaintiff was the owner of the entire fee of the abutting lot and the damages he sought to recover were to the rental value of that lot. The damages to the fee of the street were nominal. The jury were instructed by the court that the plaintiff was entitled to recover six cents only for the injury to the street proper. Plaintiff’s co-tenants in the fee of the street were not interested in the question of the damages claimed in the complaint. They, at most would have been entitled to only one-half of the six cents. If the action had been simply for injury to the fee of the street, the damages would have been nominal. City of Buffalo v. Pratt, 131 N. Y. 299; 43 St. Rep. 278. Judgments will not be reversed to allow a party to retry a cause of action where only nominal damages are involved.

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

Dwight, P. J„, Haight and Bradley, JJ., concur.


text:
    Nancy A. Fiero, Impleaded, etc., Resp’t, v. William H. Meaker, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Usury—Bond and mortgage.
    Where a party, on receiving a deed of certain premises, gives a bond and mortgage thereon for the purchase price to a third person, to whom the grantor is indebted in a larger amount, as part payment of such indebtedness, and pays to such mortgagee a bonus, such bond and mortgage are usurious.

      2. Witness—Competency—Section 829.
    Where a witness has no direct interest in the result of the action, but whatever interest he has is remote or contingent, such interest does not under § 829 of the Code, disqualify him from testifying.
    Appeal from a judgment entered in Cayuga County clerk’s office October 6th, 1893, in favor of the defendant upon the report of a referee.
    The action was brought for the foreclosure of a mortgage of eight hundred dollars given by the defendant Nancy A. Fiero to Samuel Stokes, the plaintiff's testator. The defense was usury.

      Lyon & Pierce (John D. Teller, of counsel), for app’lt; F. I). Wright,, for resp’t.
   Lewis, J.

The defendant, Mrs. Fiero, was the owner of real •estate in the city of Auburn on which there was a mortgage. Upon the sale of the premises .upon the foreclosure of said mortgage James D. Hoskins became the purchaser under an arrangement with Mrs. Fiero that he would bid'in the property and would convey it to her upon payment to him of the sum of eight hundred ■dollars, the amount of his claim upon the property. The testator Stokes was at the time the owner and holder of a bond and mortgage made by Hoskins for the sum of twenty-five hundred dollars not at that time due. Stokes was desirous that Hoskins should make a payment upon his bond and mortgage of fifteen hundred dollars. Hoskins informed Stokes of his relations with the Fiero property and agreed that if Mrs. Fiero would consent so to do, that he would convey to her the Auburn premises and take her bond and a mortgage running to Stokes for the sum of eight hundred dqllars. It was agreed between Hoskins and Stokes if Mrs. Fiero consented so to do that Stokes should receive the bond and mortgage from Mrs. Fiero with seven hundred dollars in money to be paid by' Hoskins as a payment of fifteen hundred dollars upon his said twenty-five hundred dollar bond and mortgage. Hoskins thereupon conveyed the premises to Mrs. Fiero; she executed the bond and mortgage to Stokes; and Mrs. Fiero, Stokes and Hoskins met at Mr. Hoskins’ office. Hoskins was called as a witness by Mrs. Fiero on the trial and testified as follows as to what occurred at that interview: “ I went over to the Bank and got seven hundred dollars; laid it with the mortgage and bond, exhibits 1 and 2, on my desk; also the deed. I passed the bond and mortgage and the money towards Stokes. He shook his head and said no. I handed the deed to Mrs. Fiero. He said: “ I want to know something about that present” I said: “ Mrs. Fiero, Stokes wants a bonus on this mortgage. I so called it. He called it a present. Mrs. Fiero got up and came over towards him and said, “ What is it, Mr. Stokes ? ” He replied, I am always in the habit of taking a present when I take a mortgage. I want one now.” She said, “How much do you want, Mr. Stokes ? ” and he answered, “ Twenty-five dollars.” She said, “I haven’t got twenty-five dollars. All I have in the world is fifteen.” There was a pause. I says, “ Sammy, don’t be a hog. If fifteen dollars is all the woman has got take it and not be a hog.” I was out of patience with him. He then said, “ Well, give me the money.” She then took the money out of her pocket and gave it to him. He then picked up the bond and mortgage and seven hundred dollars. I then wrote the endorsement on the mortgage exhibit “ 3 ” and he signed it then and there and went out of the office. Frederick H. Kennedy testified that he was present at the interview referred to by the witness Hoskins; that they were talking about the eight hundred dollar mortgage Mrs. Fiero was giving to Samuel Stokes. His account of the affair was substantially that related by Mr. Hoskins. It is the contention of the appellant that the transaction did not amount to a loan or forbearance of money for the reason that no money in fact passed between the parties. We think the transaction in effect amounted to an ‘advancement by Stokes to Mrs. Fiero of the sum of eight hundred dollars, for which she gave her bond and mortgage for the payment' of that sum with interest Had Stokes handed to Mrs. Fiero eight hundred dollars in currency and Mrs. Fiero . had handed the money to Hoskins and Hoskins delivered it to Stokes and its endorsement had been made as stated it would be conceded that the defense of usury was established. As the law looks not to the form of the transaction but to its substance,was not what occurred in substance and effect the same thing? Mrs. Fiero by the transaction paid her debt to the Hoskins, and Hoskins secured an endorsement upon his indebtedness to Stokes, and Stokes obtained the bond and mortgage of Mrs. Fiero for the eight hundred dollars, with interest, and in addition to the lawful interest demanded and received the fifteen dollars bonus. The referee held, and we think, correctly, that it amounted to a usurious agreement for the loan and forbearance of money, and that the bond and mortgage were usurious and void.

The plaintiff objected to Mr. Hoskins testifying to the transaction between Mr. Stokes and Mrs. Fiero upon the ground that he was interested in the event of the action, and was the person from, through or under whom the defendant derived her interest or title. The subject-matter of the litigation was the bond and mortgage. Hoskins, after they had been accepted by Stokes, had no further interest or concern in them. He had conveyed his interest in the premises to Mrs. Fiero before the bond and mortgage were accepted by Stokes, and had received his pay in full from Mrs. Fiero. He certainly had no direct interest in the result of the action. It is the contention of the appellant that he, at least, had a contingent, or remote interest; that the bond and mortgage of Mrs. Fiero having, by the arrangement with Stokes, been endorsed upon the twenty-five hundred dollar mortgage as a payment, that the evidence of the security because- of usury" had the effect to revive his indebtedness to Stokes to that amount Mrs. Fiero in good faith took title to the premises and paid her debt-to Hoskins by her bond and mortgage. -Hoskins was not a party to the usurious agreement between Mrs. Fiero and Stokes. He had conveyed to Mrs. Fiero all the interest he had in her land,, and because Stokes saw fit to demand usury of Mrs. Fiero, and in consequence is not able to recover his money, Mrs. Fiero’s indebtness to Hoskins is not thereby revived. If so, he is the only party who is to suffer by an usurious agreement to which he was-not a party. Had Hoskins been the maker of the eight hundred dollar bond and mortgage, and they had been avoided because of usury, the rule contended for by the appellant might apply, he would in that case have been a party to the usurious agreement which he was instrumental in having declared void. The most, that can be claimed is, that Hoskins had a remote or contingent, interest. Such an interest did not disqualify him. McGlynn v. Seymour, 14 St. Rep. 705-7; Hobart v. Hobart, 62 N. Y. 80; Wallace v. Straus, 113 N. Y. 235; 22 St Rep. 984; Connelly v. O'Connor, 117 N. Y. 91; 26 St. Rep. 840; Beakes v. Da Cunha, 126 N. Y. 293; 37 St. Rep. 14. Hoskins was not the person through, or under whom either of the parties derived their title or interest in the subject-matter of the litigation. The bond and mortgage in controversy were given by Mrs. Fiero to Stokes. Hoskins had no direct interest in it. The case of Smith v. Cross,, 90 N. Y. 549, to which we are referred by appellant’s counsel does not sustain his contention. The witness Wilson, in that case had a direct interest. He was the maker of the bond and mortgage, and was, at the time they were given, the owner of the premises upon which the mortgage was a lien. After negotiating the bond and mortgage, he conveyed the premises upon which the mortgage was a lien, with a covenant of warranty to the defendant. He was, therefore, directly interested to defeat the mortgage. We find nothing in the plaintiff’s exception requiring a reversal of the judgment. It should be affirmed, with costs.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    Daniel B. Wesson, for the Benefit of Himself and Other Creditors, etc., Resp’t, v. George D. Chapman, as Receiver, etc., et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Receiver—Railroad—Certificates.
    Without the order of the court, the receiver has no power to issue notes or certificates which will be binding upon the trust estate.
    2. Same—Without order.
    The holder of notes, issued without authority, must at least show that his money was used for the benefit of the road, before he can make a claim for equitable relief.

      Appeal by Robert Dunlap & Company, creditors of George D. Chapman as receiver, etc., from a judgment entered herein adjudging that they are not entitled as creditors of said receiver to a lien against the property of the railroad company equal to the lien held by the holders and owners of receiver’s certificates and notes issued under the orders of the court.

      R. Floyd Clark, for app’lts; William L. Marcy, for resp’ts.
   Lewis, J.

This action was commenced by the plaintiff, Daniel B. Wesson, in behalf of himself as the owner and holder of receiver’s certificates, and others like situated, to obtain a judgment declaring their claim a first lien upon the said railroad property and franchises and for the.sale thereof, etc. The action was referred to James M. Townsend, Jr., as sole referee to hear, try and determine the issues in said action, and to ascertain the amount of the outstanding indebtedness of the receiver George D. Chapman, together with the names of the holders of said indebtedness and the amounts due to each, and the validity and priorty of said claims as liens upon- the property and franchises of the Lackawanna & Pittsburg Railroad Company. The referee found as facts that the Lackawanna & Pittsburg R. R. Go. is a domestic corporation created and existing under the laws of the state of New York, that it was formed by the consolidation of two other railroads which constituent railroad companies had theretofore mortgaged their respective properties, to secure their bonds, and that the new company had also mortgaged its property to secure its bonds and that thereafter and on the eighth day of December, 1884, an action was commenced in the name of the People of the state of New York for the purpose of dissolving said corporation and distributing its assets. That at a special term of the supreme court held in the city of Buffalo, George D. Chapman was duly appointed, receiver of said company and thereafter on the application of said receiver an order was granted authorizing and directing him to issue receiver’s certificates to the amount of one hundred thousand dollars, to be sold by him and the proceeds of the sales used for the benefit of the property of said road, and of the owners and holders of its stock and bonds. The order provided that the certificates, when issued, should be and become the first lien on the said railroad property and franchises prior to the lien of said mortgages. Said Chapman issued' certificates amounting to one hundred thousand dollars, ten of said certificates he sold to the plaintiff who paid therefor full value, to wit: the sum of ten thousand dollars ; the certificates became due and payable on the first of January, 1890. Thereafter upon the application of said receiver, an order was duly granted by the supreme court, authorizing him to issue receiver’s notes to the aggregate amount of fifty thousand dollars, the order provided that when so issued they should be a lien upon all the railroad property and franchises of said Lackawanna & Pittsburg Railroad Company prior and superior to the liens of said mortgages mentioned; under the authority thus conferred said receiver duly issued and negotiated receiver’s notes to the amount of $50,000 of which there were, at the date of the referee’s report, forty-five thousand dollars outstanding.

Some of said notes were sold by the receiver at par; others were pledged as collateral security to his individual notes which were sold at less than par, the aggregate amount realized therefrom being forty-four thousand dollars. The receiver operated the road from the time .of his appointment in "December, 1884, to September 1, 1888, and during most of the time the receipts and income therefrom were not sufficient to pay its current expenses. Attached to each of the genuine notes issued by the receiver was a certificate which stated that the notes were issued pursuant to an order of the court, authorizing their issue, that they were to be a debt of the receiver for the benefit and. protection of the property of said railroad and of the creditors and holders of the stock and bonds thereof, and were to be a first lien on said property prior to-the lien of the said several mortgages. After the said receiver had issued the said notes to the amount of fifty thousand dollars, and after he had ceased to operate and manage the road as receiver, and in the month of December, 1888, he entered into negotiations with the appellants, looking to the borrowing of ten thousand dollars from them and to accomplish his purpose he issued what purposted to be receiver’s notes to the amount of ten thousand dollars and sold them to the appellants -at par, they believing them to be the genuine notes of the receiver when they purchased them. There was attached to said notes so sold to the appellants a writing which recited that they were issued as the notes of George D. Chapman as receiver of said road, it did not, however, state by what authority they were issued nor that they were to be a first lien upon the railroad property and its franchises. The appellants at the hearing before the referee presented tneir notes and asked to-have them allowed as a claim against the receiver and the railroad company with the same force and effect as the certificates and notes issued as aforesaid by virtue of the orders of the court. • It was not shown that the proceeds of the appellants’ notes, nor any part thereof, were in any way used for the benefit of the railroad, as their sale to the appellants occured after the receiver ceased his connection with the road it is quite evident that they were not so used. The referee held that the appellants were not entitled to come in as creditors of the railroad company and participate in the-assets of the company. The report of the referee having been confirmed, and judgment entered thereon, this appeal was taken by Dunlap & Company. The case comes here upon exceptions only. Ho evidence is contained in the record, so that questions of law only are presented. It is the contention of the appellants-that having advanced money to the receiver appointed by the-court.upon the strength of notes purporting to be issued by him as such receiver, that they are entitled to share pro rata with the holders of genuine certificates and notes in the assets of the company ; if not to the full amount of their notes, to at least in the sum of six thousand dollars, which the receiver had not obtained from the sales of the notes of fifty thousand dollars, issued by the order of the court, there being, the appellants contend, an actual overissue of only four thousand dollars. Without the order of the court the receiver had no power to issue notes or certificates which would be binding upon the trust estate. Newbold v. Peoria & Springfield R. R. Co., 5 Bradw., 367. He had no authority to issue the notes purchased by the appellants, and had the appellants examined the notes and the accompanying papers before purchasing them, they would have discovered that they did not purport to be issued by authority of the court While it would not be incumbent upon the holders of notes, or certificates issued by the receiver pursuant to the order of the court to show that the proceeds of the sale were devoted by him for the benefit of the road, the same rule can not be held to' apply to the holders of notes issued without authority. The holder of such notes must at least show that his money was used for the benefit of the estate before he can make a claim for equitable relief. The receiver had exhausted his powers when he issued the amount of notes provided for in the order; and when he assumed to issue the notes purchased by the appellants, he was acting outside of the power conferred upon him; and to permit the holders of such notes to participate in the assets of the company upon an equality with those holding genuine notes would destroy the market value of genuine certificates or notes issued by receivers under the order of a court, to allow such instruments to take precedence of existing mortgages would destroy the market value of such securities. The cases to which we are referred, where courts have given relief to the holders of stock and instruments improperly issued by directors of corporations, the corporations were held liable for the reason that the improper conduct was that of their agents or representatives. The receiver here was not the representative in that sense of the corporation, he was simply the instrume'nt employed by the court to take charge of the corpus of the estate pending the litigation. We know of no principle upon which plaintiff's notes ean be reformed so as to make them appear to have been issued by order of the court. ■ The only remedy open to the appellants is against the receiver personally. The judgment appealed from should be affirmed with costs.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    Charles H. Reynolds, Resp’t, v. Albert Haywood et al., Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Evidence—False imprisonment—Malice.
    In an action for false imprisoment, it is competent to show, on the question of defendant's malice, that, at a time prior to the commencement of the action, he made a second attempt to indict the plaintiff.
    2. Same—Instructions to opeicer.
    Where the defendant placed the warrant for the arrest of the plaintiff, with certain directions for its execution, in the hands of the officer, it is competent to show what his agent said and did in carrying out his instructions.

      3. Appeal—Objections.
    Where no specific objection is made to evidence, and no grounds are stated, it will not avail the appellant upon the appeal.
    Appeal from the judgment of the Chautauqua county court, and from, an order of the special term of the supreme court denying the appellants’ motion for a new trial made on the case and exceptions.

      George Barker, for app’lts; J. G. Record, for resp’t.
   Lewis, J.

This action was brought against the decedent, Rufus Haywood, to recover damages for malicious prosecution in causing the arrest and imprisonment of the plaintiff upon the charge of grand larceny. Plaintiff recovered a verdict; the defendant, Haywood, after the recovery of the verdict, died; by an order of the court his executors were substituted as defendants nnd brought this appeal. The appellants rely for a reversal of the judgment upon exceptions taken by the defendant at the trial of the reception of evidence offered by the plaintiff. But one cause of action for malicious prosecution was stated in the plaintiff’s complaint and that consisted in the defendant’s causing the plaintiff’s arrest and examination before the magistrate on the charge of grand larceny, and the presentation thereafter of the same charge to a grand jury in the county, the complaint being there dismissed. The plaintiff was permitted, over the objection of the defendant, to show that after once presenting the charge against the plaintiff to a grand jury of the county, the defendant again presented the same charge against the defendant to another grand jury. This evidence was objected to “on the ground that it is not alleged in the answer.” ' It is claimed by the appellants that notwithstanding it appears that in making the objection the word “answer” was used instead of the word “complaint,” that we must assume that the objector intended to use the word “complaint,” and that it must, have been so understood by the court at the time. Assuming this to be so, it is quite doubtful if the form of the objection was such as to avail the defendants. It was competent to show on the question of malice of the defendant that at a time prior to the commencement of the action he made a second attempt to indict the plaintiff.

It does not appear from the record when the action was in fact commenced, and the ground of the objection not being that the second appearance before the grand jury was after the commencement of the action, it must be held that the objection was not sufficiently specific to avail the defendant upon appeal. The defendant placed the warrant for the arrest of the plaintiff in the hands of the officer, Lake, and directed him that in case he could induce the plaintiff to pay or secure a demand the defendant had against the plaintiff, he need not execute the warrant. Plaintiff was permitted, against the objection of the defendant, to prove what the officer, Lake, said to the plaintiff and others who were present at the time of the arrest as to what he was instructed by the defendant to do, or not to do, provided the plaintiff would pay or secure the debt. Most of the evidence complained of was competent as bearing upon the question of the defendant’s malice. He was manifestly engaged in an attempt to use the criminal process to enforce the collection of a civil debt, and it was competent to show what his agent Lake said and did in carrying out his instructions. Lake, in the course of the conversation, made statements as to the kind of man Haywood was, that were not competent evidence, but no specific objections was made to this evidence, no grounds of the objection were stated, and therefore cannot avail the defendants upon this appeal. The evidence that Haywood appeared to be angry at the trial of a civil action between the parties was not material, but it was not of sufficient importance to justify a reversal of the judgment.

The judgment and order appealed from should be affirmed.

Dwight, P. J., Haight and Bradley, J. J., concur.


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    Danville and Mt. Morris Railroad Company, App’lt, v. Amariah Hammond, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Fifth Dpartment,

      Filed March, 1894.)

    1. Condemnation proceedings—Superstructures.
    Where the company claims to be the owner of certain superstructures placed upon the land by it or its lessor prior to the institution of the condemnation proceedings, there is no necessity or propriety, on such proceedings, to ask for their condemnation.
    2. Same—Answer.
    In such case, the defendant is not required, by the provisions of the condemnation law, to make answer regarding such unnecessary allegation.
    3. Same—Power op commissioners.
    If the superstructures belong to the defendant, the commissioners may, without such allegation or answer, take that fact into consideration in fixing the value of the property. ,
    4. Same—Costs.
    The only case, in which the defendant is entitled to costs upon the preliminary hearing, is where he succeeds in having the petition dismissed.
    5. Same—Practice.
    The practice in condemnation prooceedings fully stated.
    Appeal by the plaintiff from an interlocutory judgment of the supreme court entered in Livingston county on the 6th day of July, 1892, adjudging that the plaintiff was entitled to take and hold the property of the defendant described in the petition for railroad purposes, upon making compensation therefor; and that in ascertaining the compensation to be made to the defendant, Hammond, the owner thereof, the commissioners should estimate its value, including all rails, ties, culverts, bridges and all structures thereon. And further adjudging that the said defendant was entitled to recover of the plaintiff, $192.79, his costs and disbursements in the action.

      D. J. Richardson, for app’lt; F, 0. Peck, for resp’t.
   Lewis, J.

This is a proceeding instituted by the plaintiff, a domestic railroad corporation, for che purpose of acquiring by condemnation, certain lands situate in Livingston county, New York, owned by the defendant Hammond.

The plaintiff was organized under the statutes of the state for the purpose of maintaining and operating a railroad in Livingston county, New York, which had been theretofore constructed by the Erie & Genesee Valley Bailroad Company, and operated by that company and by the New York, Lake Erie & Western Bailroad Company as lessee of the said Genesee Valley Company. The Genesee Valley Company, after it was organized, instituted proceedings to condemn a right of way across the defendant’s farm, and carried on such proceedings down to the negotiations with the defendant for the right of way and without prosecuting them further, entered upon the defendant’s land against his remonstrances, graded a track and constructed superstructures thereon,, consiting of bridges, sluices, ties, rails, fences and other improvements, and thereupon comihenced the operation of its road and ran its trains across the defendant’s lands, until the first of Januar}r, 1872, when it leased its railroad and franchises to the New York, Lake Erie & Western Bailroad Company. The latter company entered into possession and operated the road until 1891. The defendant Hammond, in 1884, commenced an action of ejectment against the Erie & Genesee Valley Company, and the New York, Lake Erie & Western Bailroad Company to recover possession of this strip of land, and in the year, 1887, recovered a judgment against the defendants, adjudging that he was seized of an estate in fee in said lands, and. was entitled to possession thereof, and by virtue of the judgment and execution, the sheriff put the defendant in possession of the land on the 6th day of November, 1891. The plaintiff acquired title to the franchises andproperty of the Genesee Valley Boad in October, 1891, through foreclosure proceedings, and thereafter, and on the 20th day of November of that year, instituted these proceedings to condemn the right of way above described across the defendant’s land. Issue was joined and a trial was had before a referee, who made a decision by which he found and decided that the plaintiff was entitled to take and hold the property described in the petition for railroad purposes, and reported that in ascertaining the compensation to be made to the owner, the commissioners should estimate the value of the superstructures upon the land above mentioned, and he further decided that the defendant was entitled to recover costs and disbursements of the proceedings against the plaintiff. An interlocutory judgment was entered upon the said decision, the plaintiff appealed from said judgment and asks for a reversal of so much thereof as "relates to the direction to the commissioners to ascertain the value of the superstructures, and to such part thereof as awards costs. It is his contention that the referee did not have jurisdiction to pass upon these questions. The order of reference was in the ordinary form, to the effect that upon reading and filing the petition of the plaintiff, praying that it may be adjudged that the public use requires the condemnation of the real property therein described, and that the plaintiff may be adjudged entitled to take, hold and possess such property for the purpose of constructing, maintaining and operating its railroad upon making compensation therefor, and that commissioners of appraisal may be appointed to ascertain such compensation; and on reading and filing the answer of the defendant Hammond, it be referred to the referee to hear and determine the issues so joined. A complete system of practice in condemnation proceedings is provided by chapter 23 of the Code of Civil Procedure. The proceedings are commenced by service of a petition which must contain a specific description of the property to be condemned, its location by metes and bounds with reasonable certainty, the use for which it is required, names and places of residence of the owners, a statement that the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability, and a general demand for relief to the effect that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is entitled to take and hold such property for the public use specified, upon making compensation therefor; and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners of the property so taken. Annexed to the petition to be served must be a notice to the owner of the time and place at which it will be presented to a special term of the supreme court, the owner may, on said day, appear and interpose an answer which must contain a general or specific denial of each material allegation of the petition controverted by him or a statement of new matter constituting a defense to the proceeding. The court is required to try any issue raised by the petition and answer, or it may refer the same to a referee to hear and determine. It is provided that a judgment may be entered pursuant to the decision of the court or referee, and if it is in favor of the defendant, the petition shall be dismissed with costs to be taxed; but if the decision is in favor of the plaintiff, judgment shall be entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold said property upon making compensation therefor; the court shall thereupon appoint three commissioners to ascertain the compensation to be made to the owners, for the property to be taken.

The commissioners are required to view the premises, hear the testimony, reduce it to writing, and fix the amount of compensation which ought to be made to the owner, and make report to the court of their proceedings with the minutes of the testimony taken. The report and testimony must be filed, and any party to the proceedings may move for its confirmation. The court may confirm the report or may set it aside for irregularity or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insufficient. There are provisions regulating the awarding of costs upon the final disposition of the proceedings.

The only provision for costs upon the preliminary hearing before the court or referee is in case the petition shall be dismissed, then the defendant is entitled to costs. The petition presented by the plaintiff contained the usual allegations required by the Code, in stating the reasons of the plaintiff’s inability to acquire the title to the land by agreement with the defendant, it is stated, that the price demanded by said Hammond was excessive and much beyond the actual value of the lands. “ That the said Hammond claimed he was entitled to the superstructures on said lands, and demanded payment therefor, which was.refused, and the plaintiff alleges that the superstructures on said lands, consisting of the ties, rails, fences, bridges, sluices, and all the property and improvements which the said Erie & Gfe.n'esee Yalley Bailroad Company, its agents and lessees put upon said land in the construction, maintenance and operation of said railroad,- is now the property of the plaintiff, under the proceedings aforesaid; that in consequence of said demand of said Hammond, and of his refusal to convey the said land unless the price demanded by him was paid to him, no agreement can be arrived at for obtaining title-thereto, and this proceeding is made necessary.” The answer of the defendant Hammond admitted many of the allegations of the¡ petition and" pleaded in bar of the plaintiff’s claim to the ownership of the superstructure, the judgment in ejectment above mentioned.

The learned referee probably embraced in his decision the provision requiring the commissioners to appraise the superstructure because of the allegations in the petition mentioned. The allegations in the petition in reference to the superstructure were unnecessary and superfluous, except, perhaps, as affording some explanation of the failure of the parties to come to an agreement as to the value of the land sought to be condemned. There was no demand in the petition to condemn the superstructures, on the contrary, the plaintiff claimed to be the owner of them, hence there was no necessity or propriety in asking for their condemnation. As the plaintiff was not asking for the condemnation of the superstructures, the defendant was not required by the provisions of the condemnation law to make answer regarding that allegation. It may be held ultimately, in view of the judgment in the ejectment action that the defendant is the "owner of said superstructures, but that question will arise before the commissioners when they are assessing the value of the property sought to be condemned, and before the court upon the application for the confirmation of their report.

If the superstructures belonged to the defendant, the commissioners may take that into consideration in fixing the value of the piroperty.

The plaintiff cannot be said to have consented that the referee should pass upon this question and is therefore estopped from raising it upon this appeal, for such a finding on the part of the referee could not have been anticipated, and the plaintiff duly excepted to such finding.

The referee erred in giving costs to the defendant. As we have seen, the only case in which the defendant is entitled to costs upon the preliminary hearing, is where he succeeds in having the petition dismissed. The petition was not dismissed in this case, but on the contrary, the relief asked for was granted to the plaintiff, to wit: that he was entitled to take and hold the property. The judgment appealed from should „be modified by striking therefrom so much thereof as requires the commissioners to appraise the superstructures and also that part relating to costs and as so modified it should be affirmed, without costs of this appeal to either party.

Dwight, P. J., Haight and Bradley, JJ., concur.


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    William H. Stone, as Administrator, etc., Resp’t, v. The Groton Bridge and Manufacturing Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Negligence—Personal injuries—Foreign statute.
    Where a cause of action for personal injuries by reason of negligence arises in another state, the action in this state is controlled by the statute of the former state.

      2. Same—By whom brought.
    In such case, the action is maintainable only by the person who is, by the terms of the statute of the state where the cause of action arose, authorized to maintain it.
    3. Pleadings—Complaint—Cause op action.
    Whether a complaint states facts sufficient to constituse a cause of action can be raised at any time during the trial, and need not be presented either by answer or demurrer.
    Appeal from a judgment entered in Cayuga county on the verdict of the jury in favor of the plaintiff, and from an order denying defendant’s motion for a new trial made upon the minutes.

      8. D. Ilalliday, for app’lt; H. Greenfield, for resp’t.
   Lewis, J.

This action was brought by the plaintiff as administrator of the estate of Arthur Stone, deceased, against the defendant, a domestic corporation, incorporated under the lawsuf the state of New York to recover damages for the negligent killing of the intestate by the defendant. The intestate was a resident of the county of Cayuga, New York. He was an employe of the defendant and was, at the time of the accident which resulted in his death, working upon a bridge which the defendant was engaged in building at Hancock, Md. The deceased left him surviving a mother, brothers and sisters, but no father, widow or children. Plaintiff, a brother of deceased, was duly appointed administrator of Arthur’s estate by the surrogate of Cayuga county, and brought this action as such administrator to recover the damages sustained by the death of the deceased, basing his claim upon a statute of the state of Maryland passed in 1852,which provides for the recovery of damages for the negligent killing of a person in case the person injured, if death had not ensued, would have been entitled to recover. It further provided that every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused, and shall be brought by, and in the name of, the state- of Maryland, for the use of the person entitled to damages. There are other provisions of the act not necessary to be mentioned. The Maryland statute was fully set out in the plaintiff’s complaint, and it was therein alleged that by virtue of the laws of that state there had accrued to the plaintiff a cause of action against the defendant for the sum of $5,000, for which sum judgment was demanded. The liability of the defendant was put in issue by the answer, and at the opening of the trial the defendant’s counsel moved for a dismissal of the complaint on the ground that it did not set up facts sufficient to constitute a cause of action, and upon the further ground that there is such a dissimilarity in the statutes of the states of Maryland and of New York that the courts of-this state will not, as a matter of comity, enforce the Maryland statute, and further that the Maryland statute cited provides that the action must be brought in the name of the state of Maryland, and that the action could only be maintained in the name of that state. At the close of the evidence the defendant renewed his motion on the grounds stated and upon the further ground that the plaintiff had not proved facts sufficient to constitute . a cause of action. No question is made • but that a cause of action existed against the defendant under the laws of the state of Maryland for the killing of the deceased. The question here presented is, who is entitled to maintain the action and recover the damages? Can it be prosecuted in the name of the plaintiff as administrator of the estate of his brother? Although the statutes of the various states giving causes of action in such cases have no extra territorial force, our courts, as a matter of comity, where the statutes of the state in which the cause of action arises, and ours are similar and where we have jurisdiction of the defendant will furnish the machinery to prosecute the claim; but it is the statute of the state where the cause of action arose that we enforce and not ours. The main purpose of the stature of Maryland and ours is similar. In some respects they are unlike. Under our statute the beneficiaries are the husband, wife or next of kin. Under the Maryland act the wife, husband, parent and child of the deceased are. the beneficiaries. Under the facts in this case the mother is the sole beneficiary, as the deceased left no wife, father or child, but left a mother. Neither the brothers or sisters have any claim under that statute. Assuming that the matters of difference in the two statutes are not so radical as to prevent our courts enforcing the Maryland' act, there is, we think, an insuperable difficulty in the plaintiff’s maintaining this action. As we have seen-the mother is the sole beneficiary. The entire recovery would go to her. The cause of action arose in the state of Maryland, and the right to prosecute the action here is controlled by the statute of that state. If the action had been instituted in the state of Maryland it must have been prosecuted in the name of that state. If the plaintiff could not have recovered in the courts of Maryland in his name as administrator we are not able to see how he can prosecute the action here. It seems to be settled by authority that the action is maintainable only by the person who is, by terms of the statute of -the state where the cause of action arose authorized to maintain it. In the case of Wooden v. The W. N. Y. & P. R. R. Co., 126 N. Y., 10; 36 St. Rep. 387, plaintiff’s husband was killed in the state of Pennsylvania through the negligence of the defendant. She brought an action to recover damages in her own name in the superior court of Buffalo, basing her right to recover upon the laws of the state of Pennsylvania. Under the laws of that state the right of action in such cases is given to the widow for her own benefit and that of the children of the deceased. It was held that the action was properly brought in her name, and Judge Pinch in his opinion says, “It is a cause of action created and arising in Pennsylvania which our tribunals vindicate upon principles of comity and therefore must be prosecuted here in the name of the party to whom alone belongs the right of action. And that rule the courts of Pennsylvania enforce where the cause of action arises here by permitting it to be brought by the executors or administrators to whom by our law the right is given although not by their own.” Usher v. N. Jersey R. Co., 126 Pa. St., 207. The same rule is laid down in Selma R. & D. R. R. Co. v. Lacey, 49 Georgia, 106; Belding v. Black Hills & St. Pierre R. R. Co., 52 Am. & Eng. R. R. Cases; Illinois Central R. R. Co. v. Hunter, 70 Miss., 471. Tiffany in his work on Death by Wrongful Act, § 201, states the rule to be that “If the right to sue is given by the foreign statute directly to the beneficiaries they only are entitled to sue, notwithstanding that the statute of the state of the tribunal gives the right of action to the personal representatives.” The plaintiff neither personally nor as administrator of his brother’s estate appears to have any interest in the claim. The mother, who is the sole beneficiary, is not a party to the action, and so far as appears from the record was not present at the trial and never had so far as appears any knowledge that such an action was pending. If the plaintiff should succeed in holding this judgment it would not be a bar to an action brought by the state of Maryland for the benefit of the mother. If the beneficiary in this case were not able to induce the state of Maryland to prosecute her claim she would probably be remedy-less. If it should be held that she was entitled to maintain an action in our courts in her own name, she being the sole beneficiary, that would not remove the obstacle to the plaintiff’s recovery. He does not claim to have any authority from the beneficiary to prosecute this action for her benefit. The question of the plaintiff’s capacity to sue could be raised only by answer or demurrer. Sections 498-499 Code of Civil Procedure. And if not so raised it is deemed to have been waived. But whether the complaint states facts sufficient to constitute a cause of action can be raised at any time during the trial, and need not be presented either by answer or demurrer. The plaintiff here has the legal capacity to sue but he has no cause of action against the defendant. The defendant’s motion for a non-suit should have been granted. The judgment and order appealed from should be reversed and a new trial granted, costs to abide She event.

Dwight, P. J., Haight and Bradley, JJ., concur.


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    In the Matter of the Estate of Julia A. Smith, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    Taxes—Transfer—Exemption.
    Section 2, chap. 399 of 1892, does not exempt foreign corporations from. the operation of the act.
    Appeal by the county treasurer of Orleans county from a decree of the surrogate’s court of said county.

      M B. Simons, for app’lt; D. W Perkins, for resp’t.
   Lewis, J.

Mrs Julia A. Smith, deceased, by her will which was admitted to probate by the surrogate of Orleans county on the 23d day of March, 1891, made bequests to three Foreign. Missionary Societies, namely, The American Baptist Missionary Union, The Woman’s American Baptist Home Missionary Society, and The Woman’s Baptist Foreign Mission Society ; to one the sum of one thousand dollars, and to the others the sum of' two thousand dollars each. This proceeding was instituted before the surrogate of Orleans county for the assessment and collection of the collateral inheritance tax on said bequests. The learned surrogate held and decided that the societies mentioned were not liable for the legacy tax on the sums so bequeathed to them for the reason that they were exempt from the payment thereof by the provisions of § 2 of chap. 399 of the Laws of 1892. The treasurer of the county of Orleans, who was a party to the proceeding, appealed from the decree. Whether said societies are liable for the said tax is the only question presented for our decision and that involves the construction of our Collateral Inheritance Statutes, chap. 483, of the Laws of 1885, was the first act passed providing for such a tax. It was amended by several subsequent statutes. A general' law was passed covering the entire subject, being chap. 399 of the Laws of 1892, which took effect' on the 30th day of April of that year. The first section of the act provides for imposing a tax of five per cent, upon the transfer of any property, real or personal, of the value of five hundred dollars or over when the transfer is by will or by the intestate laws of the state of any person dying, seized or possessed of the property while a resident of the state or when the transfer is by will of property within the state and the decedent was a non-resident of the state at the time of his death,, except as otherwise prescribed in § 2 of the act. Section 2 provides for a tax of one per cent, upon the property passing by such transfer to the use of certain relatives of the deceased mentioned in the section. The following provision is contained in. this section. “But any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious-corporation shall be exempt from and npt subject to the provisions of this act.” The learned surrogate held that the institutions mentioned were in consequence of this provision exempt from the payment of the tax, and whether the construction given to the section is correct depends upon whether the words “Religious Corporation” includes the corporations' of that character, foreign as well as domestic. The language of the proviso is quite general and says that any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation shall be exempt and not subject to the provisions of the act. We are not referred to any reported case deciding this precise question. The court of appeals in the Matter of the Estate of Prime, 136 N. Y. 347; 49 St. Rep. 658, gave construction to the act, chapter 553 of the Laws of 1890. The purpose of the latter act was to limit the amount of property, as well as the income therefrom which might be held by any religious, educational and other societies mentioned. There was a provision in the act, that chapter 483 of the Laws of 1885, entitled an act to tax gifts, legacies and collateral inheritance in certain cases, and the acts amendatory thereof shall not apply thereto nor to any gifts to any such corporation by grant, bequest or otherwise. Certain foreign corporations were named in Prime’s will as legatees and they claimed exemption from the inheritance tax. It was held by the court of appeals that the statute had application to domestic corporations only and' did not include foreign corporations. While the question before us was not involved in the decision of the Prime case the court very elaborately discusses the right of foreign corporations under the statutes of our state and enunciated a general rule of construction which would seem to fully cover the questions presented in the case at bar. Chief Justice Andrews in his opinion says: “We are of opinion that a statute of a state granting powers and privileges to corporations must, in the-absence of plain indications to the contrary be held to apply only to corporations created by the state, and over which it has the power of visitation and control. Such is the natural interpretation of such legislation in the absence of a contrary intention appearing on the face of the act. The legislature in such cases is dealing with its own creations whose rights and obligations it may limit, define and control.” He further says: “It is the policy of society to encourage benevolence and charity. But it is not the proper function of the state to go outside of its own limits, and devote its resources for the benefit of mankind at large.” The Prime case was decided by the general term in April, 1892, it was appealed to the court of appeals and decided by that court in January, 1893. The act of 1892 which we are considering, became a law April 30th of that year. The members of the court of appeals were undoubtedly aware of the provisions of the act of 1892 and may have intended in laying down the doctrine for the construction of the statute above referred to, to establish a rule for the guidance of the courts in cases which might arise thereunder. The act of 1892 grants certain privileges to religious corporations, but as there is an absence of any plain indications, to foreign corporations we are inclined to hold that under the doctrine of the Prime case the three societies mentioned are liable to the payment of the legacy tax. The decree of the surrogate appealed from should be reversed and the proceedings remitted to that, court with directions to determine the amount of tax to the payment of which the legatees mentioned are liable, without costs of this appeal to either party.

Dwight, P. J., Haight & Bradley, JJ., concur.


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    James Kennedy, Resp’t, v. Charles N. Strobel, as Executor, etc., App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Mortgage—Chattel—Gist.
    In order to consummate a gift of a chattel mortgage, delivery of it is not necessary; delivery of a release thereof is sufficient.
    2. Same—Release.
    After releasing the property from the lien of the mortgage, neither the mortgagee nor his executor has any claim upon it.

      t. Same—Trespasser.
    As against a trespasser, the mortgagee’s title to the property is complete, notwithstanding he parted with less than its value at the time of the taking of his mortgage.
    Appeal from a judgment entered in the office of the clerk of Livingston county, in favor of the plaintiff and against the defendant, and from an order denying defendant’s motion for a new trial.

      H. K Coyne, for app’lt; Charles D. Newton, for resp’t.
   Lewis, J.

Daniel 0. Kennedy, a brother of the plaintiff, executed and delivered to the plaintiff on the third day of September, 1892, a chattel mortgage, which was in the usual form, and covered two horses and a double harness, and was conditioned to pay the plaintiff, one year from its date, five hundred dollars. The plaintiff paid to the mortgagor, at the time of the execution and delivery of the mortgage, $114 of the consideration. The balance of the $500 was a past due indebtedness of the mortgagor to the mortgagee. Daniel C. Kennedy had theretofore, and on the 5th day of September, 1891, executed and delivered to one Hannah Rank a chattel mortgage upon the same horses and harness described in the plaintiff’s mortgage, and, in addition thereto, one single harness. The latter mortgage was conditioned to pay the mortgagee, one thousand dollars, one year from its date. The plaintiff was informed of the existence of this mortgage at the time of taking his mortgage. At the request of the mortgagor, the mortgagee, Hannah Rank, on the 15th day of August, 1892, executed and delivered to the mortgagor a written release from the lien of her mortgage of the property discribed therein ; it purported to be executed for value received but no money consideration was, in fact, paid therefor. This release was delivered to the plaintiff at the time of the taking of his mortgage, and hé relied thereon, in taking his mortgage, and in parting with the $114, heretofore mentioned. Daniel C. Kennedy, the mortgagor, and Miss Rank, were, at the time of the giving of the release aforesaid, engaged to be married, and would have been mar-lied on the 12th day of October thereafter, had it not been for her subsequent sickness and death. Miss Rank died on the 19th day of October, 1892, leaving a last will and testament appointing the defendant executor thereof. The defendant duly qualified as such executor and thereafter seized and advertised and sold the horses and double harness mortgaged as aforesaid to the plaintiff by virtue of the said mortgage to Miss Rank. The plaintiff forbade the sale and demanded possession of the property from the defendant which was refused and he thereupon brought this action for the conversion of said property, and recovered a verdict for $189.44, being the value of the property converted. The appellant contends that the release having been given without consideration, it was void. Hot so if it was a voluntary and executed gift and the circumstances of its execution and delivery tend to establish that it was a gift. It was natural that Miss Rank should wish to assist her impecunious lover, in view of their prospective marriage, she very properly retained possession of the mortgage as it was a lien upon property which she had not released. Delivery of the mortgage was not necessary to consummate the gift, delivery of the release was all that was required. Ellis v. Secor, 31 Mich. 189. After releasing the property from the lien of the mortgage, neither Miss Rank nor her executor had any claim upon it. The defendant was estopped from claiming the property as against the plaintiff As against a trespasser, the plaintiff’s title to the property was complete, notwithstanding he parted with less than its value at the time of the taking of the mortgage. The defendant having wrongfully taken the property and sold it, was liable to the plaintiff for its full value. The court charged the jury, that if they found that the release was executed and delivered to the plaintiff, as claimed by him, he was entitled to a verdict for the full value of the property. Ho exception was taken to the charge. The defendant requested the court to charge the jury that the verdict should not exceed $114.00, the amount of money advanced ; the court refused and defendant excepted.

If the jury found for the plaintiff, they were at liberty to add interest, the exception therefor cannot avail the defendant.

The judgment and order should be affirmed.

Dwight, P. J., Haight and Bradley, JJ. concur.


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    The People ex rel. Bernard Ritzenthaler, as Overseer, etc., Resp’t, v. Edward F. Higgins, Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    1. Bastardy proceedings—Municipal court op Rochester.
    The charter of the city of Rochester contemplates that bastardy proceedings shall be conducted before one of the judges until the examination actually commences.
    3. Same—Adjournment.
    In such case, the bond on adjournment is not invalidated by the adjournment of the proceedings beyond the time limited by § 849 of the Code of Criminal Procedure.

      3. Same—Section 849 of Criminal Code.
    Such section does not prohibit more than one adjournment at the request oí the defendant, but limits the time of any one adjournment to thirty days.
    Appeal by the defendant' Higgins from a judgment of the Monroe county court for $500 damages and costs, entered against-the defendants September 14,1893, upon the decision of the special county judge before whom the action was tried without a jury.
    The action came into said county court upon an appeal by the defendant from a judgment of the municipal court of the city of Eochester.

      Edward F. Wellington, for app’lts; G. D. Kiehel, for resp’t.
   Lewis, J.

On application of the respondent, based on the affidavit of Mary Barker, a warrant was issued out of the municipal court of Rochester, in bastardy proceedings against Dorian Clapp,' one of the defendants, on the 21st day of February, 1891. Clapp was brought before George E. Warner, one of the judges of the said court on the 23d day of February. He thereupon made application for an adjournment of the examination, and for that purpose executed an undertaking in the sum of $500 with the appellant and another as sureties, and the case was adjourned until the 9th day of March following. Upon the adjourned day the defendant appeared and made a further application to have the hearing adjourned until the 25th of March, to which time the case was adjourned by consent of the counsel for the people. The hearing was again adjourned at the request of the defendant, the people consenting, to the 8th day of April, 1891. On the last named day the counsel, who had appeared in the former proceedings for the defendant, appeared in court and asked to have the case adjourned until the fourth day of May following, stating as a. reason for the request that the defendant was confined in the Monroe county jail upon the charge of seducing the said Mary Barker, under promise of marriage. The application was granted and the case adjourned accordingly. On the 4th day of May, the counsel for the defendant again appeared and asked to have the case held open for ten minutes to enable him to find his client. The request was granted, but neither Clapp nor his attorney again appeared. Thereupon, Judge Warner associated Judge White, the other municipal court judge, with him, and they declared the undertaking forfeited and this action was thereafter commenced, against Clapp and the two sureties. The appellant Higgins alone defended. The case was tried in the Monroe county court before-the special county judge, without a jury. He made a decision-directing a judgment against the defendants for the sum of $500, and from the judgment entered upon said decision this appeal was- < taken by the defendant Higgins. By the charter of the city of Eochester the municipal court of the city is given jurisdiction in bastardy proceedings, chapter 561, Laws of 1890. Section 848 of the Code of Criminal Procedure provides that the magistrate before whom the defendant is brought must immediately associate with himself another justice of the peace * * * And the two magistrates thus associated must inquire as to the charge, must examine, on oath, the woman who is the mother of or who is pregnant witli the bastard, in the presence of the defendant, m respect to the charge, and hear any testimony which may be offered in relation thereto. § 849: “ Magistrates may, on the application of the defendant, for good cause, adjourn the examination not exceeding 30 days, upon the defendant giving an undertaking, with two sureties, to the effect that he will appear before the magistrates at the time appointed or that the sureties will pay the sum mentioned therein.” The provisions.of the Code are modified by tfie charter of Eochester in the following particulars : judges of the municipal court are not required to be associated together until the commencement of the examination, and the bonds the defendant is required to give to obtain an adjournment must be to the effect that tthe defendant will appear before the said court at the adjourned time and such other time or times to which adjournment may be had for the purpose of the examination and determination, and will render himself amenable to any process, order or commitment that may be issued or made in such proceedings. The bqnd in question provided that “ If the said Dorian Clapp shall personally appear before the said municipal court at the time or times to which adjournment may be had from the purpose of the examination and. determination therein, and there render himself amenable to any process, order or commitment that may be issued or made in such proceedings, then this obligation to be void,otherwise to'remain in full force and virtue.” All the proceedings in the action were had before Judge Warner, down to the last adjourned day ; they seem to have been regular in that regard, for the charter contemplates that the proceedings shall be conducted before one of the judges until the examination actually commences. Up to that time there seems to be no reason why the judges may not alternate in the conduct of the proceedings. The only question argued by the appellant, which it appears to us is of sufficient importance to merit consideration, is as to whether the bond was invalidated by the adjournment of the proceeding beyond the time limited by § 849, to wit, thirty days. That section, as we have seen, provides that the magistrate may, on the application of the defendant, for good cause, adjourn the examination not exceeding thirty days. That section, we think, does not prohibit other adjournments and for a longer time by the consent of both parties. It does not prohibit more than one adjournment at the request of the defendant but limits the time of any one adjournment to thirty days. It was held in People ex rel. Van Aken v. Millham, 100 N. Y. 273, that the sureties on a bond in a bastardy proceeding under the provisions of the Criminal Code were not released from liability because of the adjournment of the proceedings at the request of the defendant after the examination commenced. It was held that adjournment could be taken from time to time after the commencement of the trial and the liability of the sureties continued. The provisions of the charter contemplate that more than one adjournment may be had and there does not seem to be any limit to the number or time for which adjournments necessary for the proper disposal of the case may be had, either before or after the examination shall be actually entered upon. All the adjournments having been made at the request of the defendant, and by consent of both parties we are of the opinion that the trial court correctly held that the defendant was liable upon the undertaking. The judgment appealed from should be affirmed with costs.

Dwight, P. J., Haight and Bradley, JJ., concur.


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    Maude Marie V. Parcells, Resp’t, v. The City of Auburn,, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed March, 1894.)

    Negligence—Contbibtjtory.
    The evidence, in this case, was held sufficient to justify the trial court in submitting to the jury the question of defendant's freedom from negligence contributing to her injuries.
    Appeal from a judgment of the supreme court entered in Cayuga, county upon the verdict of a jury.

      W. H. Bwrby, for app’lt; Frank F. Cady. (S. F. Payne, of counsel), for resp’t.
   Lewis, J.

The plaintiff recovered a judgment against the defendant for $9,000, for injuries she sustained by’ á fall upon a defective sidewalk in the city of Auburn. The appeal was from the judgment, and only one point is presented for our consideration by the appellant’s counsel. He makes no question as to the amount of the recovery, nor as to to the defendant’s negligence, but claims that the plaintiff failed to show herself free from negligence contributing to her in j uries. An examination of the evidence has satisfied us that there was sufficient evidence to justify the trial court in submitting that question to the jury. The plaintiff’s fall was caused by her stepping into a hole in the sidewalk; it occurred in the evening; it was dark at the time; the hole was partially concealed from view by grass that had grown in and about it; immediately before stepping into the hole, she had met four people walking upon the sidewalk, two abreast; she turned aside to pass them, and in so doing, without noticing the hole, stepped one of her feet into it and fell. She had been in the city but a few weeks before the accident occurred; she had passed over this walk only once or twice ; she knew that there were defects in the walk, she had passed some of them on this occasion before arriving at the one in question ; she testified that she supposed she had passed by the bad places before she met the people. The jury was justified, from the evidence, in finding that the plaintiff was free from negligence contributing to her injuries. The verdict seems to be fully sustained by the evidence. The judgment should be affirmed.

Dwight, P. J., Haight and Bradley, JJ., concur.