text:
    Martha Bennett, by Guardian, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Railroad—Negligence.
    Plaintiff, a girl of thirteen, was injured by a collision at a street crossing in Canandaigua between a train on the main line and a cutter in which she was riding. The view to the west was obstructed by buildings, and on the branch road fifteen feet south was a train, the engine of which was blowing off steam. There was also an ice wagon on the latter track, and the flagman was on the west of such wagon. Plaintiff and the driver of the cutter looked both ways and heard and saw nothing until after passing the wagon, when the train came in sight traveling at a rapid rate, when he attempted to back, but the runner catching in the track he drove ahead and the collision occurred. Held, that there was sufficient to justify a finding that defendant’s negligence caused the accident, that the driver’s negligence was not imputable to plaintiff, and that she was free from negligence.

      % Same—Damages.
    Plaintiff’s injuries resulted in .curvature of the spine, and she became a chronic invalid. Held, that a verdict for $8,000 was not excessive.
    Appeal from an order denying defendant’s motion for a new trial made upon the judge’s minutes at the Ontario circuit, at which the action was tried March 27, 1890.

      Camp & Dunwell, for app’lt; John Gillette, for resp’t.
   Lewis, J.

This action was commenced to recover damages for injuries received by the plaintiff by reason of a collision which occurred between the defendant’s locomotive at the Main street crossing in the village of Canandaigua and a cutter in which at the time the plaintiff was riding. The plaintiff was at the time she received her injuries thirteen years three and one-half months old, and a girl of ordinary intelligence.

She was residing in Canandaigua, north of the railroad crossing. Main street runs north and south, and is crossed nearly at right angles by defendant’s railroad track. The defendant’s road between Rochester and Syracuse passes through the business part of the village, and consists of a single track.

Running parallel with defendant’s track at the crossing of Main' street, and ten or fifteen feet southerly therefrom, is the defendant’s track running from Canandaigua to Batavia.

The defendant’s depot is located some400 feet easterly from the Main street crossing. The plaintiff had for a few weeks prior to the accident been accustomed daily to ride upon Main street across the defendant’s track, and was familiar with the railroad and the running of the trains. On the day of the accident she had ridden in a cutter southerly across the. railroad tracks with a Mr. Mulligan, a neighbor, and was at the time of the accident returning up Main street to her house in a cutter with James Mulligan. Mulligan was driving the horse, and as they attempted to cross the defendant’s track on Main street, a locomotive drawing a train of cars, coming from the west, came in collision with the cutter. The plaintiff was thrown out and seriously injured, and James Mulligan was killed.

The defendant’s track crosses Main street nearly at right angles, "but immediately west of Main street it curves to the north. There are buildings located upon the west side of the street near the track, which, to some extent, obstruct the view along the track to the west by people passing along the street

There was a flagman’s shanty on the west side of the street, south of the track, and a train of cars standing upon the Batavia track, immediately west of Main street

There was, standing in the center of Main street, just south of the southerly track at the time of the accident, a large ice wagon with horses attached to it

Mulligan and the plaintiff in coming up the street passed easterly of the ice wagon, and as they came upon the southerly track saw the approaching train, and Mulligan attempted to back his horse, but, his runner striking against the track, he was not able so to do, and he then attempted to go ahead, and was struck by the train coming from the west.

The defendant had been accustomed, theretofore, to keep a flagman at that station. At the time of the accident there was evidence tending to show that he was standing near the side of the street west of the ice wagon, and in a position so that Mulligan was not able to see him as he was passing the ice wagon.

There was, as is not unusual, a sharp conflict in the evidence, but the testimony of a large number of witnesses, called by the plaintiff, tended to show that the train, as it approached Main street, was running very rapidly, all the way from fifteen to thirty-five miles an hour.

"Witnesses called by the plaintiff testified that they were in a position to see and hear what occurred, saw the train as it approached the crossing and that no signals of its approach were given.

The engine of the train upon the Batavia track, standing just west of the street, was blowing off steam at the time of the accident, and the steam was blowing easterly across Main street

The defendant’s witnesses testified that the train was approaching the crossing at a very moderate rate of speed, and -that the bell was being rung and the whistle sounded.

We think there was sufficient evidence to justify the jury in coming to the conclusion that the defendant’s negligence caused the injuries to the plaintiff.

The plaintiff testified that as they approached the crossing she and Mulligan looked in both directions along the railroad track;. that she did not see or hear the approaching train, and that her •eyesight and hearing were good.

She testified in answer to questions as follows:

Q. Do you recollect any thing as you got up towards the track of looking yourself up the tracks? A. Yes, sir.

Q. Tell the jury what you did in that way, and where you were. A I looked up and down the track.

Q. When ? A. When we were nearly to the track.

Q. Did you notice anything of a train standing on the Batavia track ? A. I don’t know; I have forgot.

Q. What, if anything, did. yon notice James doing about looking V A. He looked down the track, too.

Q. Down or up, which? A Both ways.

Q. What did you notice him do ? A. He looked up and down the track, too.

Q. Do you know how near the track you were at this time ? A. No, sir; we were quite near, though.

Q. State to the jury whether you saw or heard any train coming at the time you looked ? A. No, sir; I did not.

Q. Was there any coming from the west that you could see ? A. No, sir.

Q. Or hear ? A. No, sir.

Q. How was your hearing and eye sight ? A. All right.

Q. Tell the jury what was the first thing you observed; describe the transaction and circumstances. A. When we were on the Batavia track, I think the cutter was on the Batavia track, and we were almost on the other track, and we saw the engine corning; it was, as I remember, by the town house, and the horse reared up when it heard the engine, and then I said: “We are going to be killed!” and I got down in the bottom of the cutter, and that is the last I remember.

She was riding with a man whom she had reason to suppose was competent to manage the horse and make the crossing safely. She had frequently ridden with him across the same track. The flagman and the driver of the ice wagon both halloed, directing Mulligan to stop, but not until his cutter was upon the Batavia track and his horse near the track upon which the train was approaching.

Mulligan, the evidence shows, then attempted to stop and back his horse, but the runner of his cutter caught in the railroad track, and in his excitement he attempted to go ahead, and in so doing came in collision with the engine and was killed.

Mulligan’s position became so dangerous and imminent as to excuse conduct which under less trying circumstances might be adjudged careless. Twomley v. C. P., N. & E. R. R. R. Co., 69 N.Y., 158; Dyer v. Erie R. Co., 71 id., 235 ; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id., 657 ; 5 N. Y. State Rep., 574.

The plaintiff being a passenger merely and having no right to direct or control Mulligan, while not excused from exercising care herself, Mulligan’s negligence cannot be imputed to her. Robinson v. The N. Y. C. & H. R R. R. Co., 66 N. Y., 11; Masterson v. The N. Y. C. & H. R. R. R. Co., 84 id., 247 ; Dyer v. The Erie Railway Co., 71 id., 228; Plalz v. The City of Cohoes, 24 Hun, 101; Hoag v. The N. Y. C. & H. R. R. R. Co., 111 N. Y, 199-203; 19 N. Y. State Rep., 80.

There was sufficient evidence, we think, to justify the jury in finding the plaintiff free from negligence contributing to her injuries.

The plaintiff recovered a verdict for $8,000. Her injuries were very severe. The evidence tends to show that she is afflicted with curvature of the spine caused by the accident, and was made a chronic invalid and in all probability will never recover from the effects of her injuries. We cannot say that the jury erred in the amount of the verdict they gave.

The court fully and fairly presented the case to the jury in the charge. The defendant's requests to charge were very numerous.

Bequests, with very slightly altered phraseology, were presented again and again to the court. An examination of these satisfies us that they were disposed of quite as favorably to the defendant as the law and the evidence justified.

The court did not intend, by the remark to the jury that “ the degree of care and caution which the plaintiff should exercise must not be measured by a person of mature years,” as a direction to the jury, but a suggestion that in considering the plaintiff’s conduct it was their duty to consider and give proper weight to the fact that she was a child, and must have been so understood by the jury.

The appellant contends that" the court erred in charging the jury as follows: “ Perhaps I have said all that is necessary on that point, unless it might be to add that if the flagman’s position was such, and the manner in which he stopped Mulligan was such, that it tended to mislead him, leading him to believe that a train was backing down or something else was about to occur, I say if this action tended to mislead Mulligan then I submit to you whether the flagman was not negligent, and whether there was any negligence on the part of Mulligan. These are questions which you must determine from all the facts in the case.”

There was evidence tending to show that the flagman, instead of standing in the centre of the street at the time of the accident, was on the side of the street west of the ice wagon, and that he did not attempt to stop Mulligan, until he had passed beyond the ice wagon and was very near the railroad track. The rear end of the train that was standing upon the Batavia track was near the Main street crossing, and, as we have seen, was blowing off steam at the time.

The court, in the part of the charge complained of, simply called attention to the circumstances, and submitted the facts to the jury for their consideration.

While isolated parts of the charge of the court may be subject to some criticism, taking the charge as a whole the jury could not have been misled, and were, we think, correctly instructed.

The exception of the defendant to the suggestion of the court, that the evidence tended to show that the plaintiff listened, was not well taken, as we think a fair construction of the plaintiff’s evidence shows that she did listen for approaching trains.

Exceptions taken by the defendant to the admission of evidence have been examined, and we fail to see that they are of sufficient importance to justify disturbing the verdict.

The order denying the motion for a new trial upon the minutes should be affirmed, with costs against the appellant

Dwight, P., J., and Macomber, J., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    In the Matter of the Attachment of the Vessel or Canal Boat called the “New York Sensation,” otherwise known as the “Sensation.”

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    1. Vessels—Lien—Laws 1862, chap. 482.
    Respondent built the vessel in question for one Bell under a contract with him, and filed a lien for the unpaid balance of the contract price. Appellant subsequently filed a lien in which he stated that respondent’s lien was prior to his own. In proceedings for distribution of the proceeds of sale of the vessel, it was claimed that Bell and respondent were joint owners, but the contract contained no provision that respondent was to remain an owner of the vessel until completed. Held, that respondent was a person who was entitled to a lien under the statute, and was entitled to the proceeds.
    2. Same—Distribution oe proceeds.
    An objection that a subsequent lienor was not notified of the application for an order of distribution is of little importance where the order is sought to be set aside, not on the ground of want of proper notice, but on the ground that it awards the proceeds to the wrong party.
    Appeal by the claimant, Charles J. Hamilton, from an order of the county judge of Erie county distributing the proceeds of the sale of a canal boat called the “New York Sensation.”

      George Clinton, for app’lt; George W. Cothran, for resp’t.
   Macomber, J.

The proceedings against the canal boat were taken in pursuance of chap. 482 of the Laws of 1862, and the amendments- thereof, and were begun and prosecuted by the respondent, Adam Homer, and resulted in the sale of the boat by the sheriff for the sum of $1,600, which sum, after the expenses were paid, was directed by the order in question to be paid over to the respondent, and from that order this appeal is taken.

It is shown by the evidence, and so decided by the county judge, that the respondent, on the 9th day of Hovember, 1889, made a contract with one Chester A. Bell to build for.the latter the whole of a canal boat for the sum of $2,000, under the terms, as to payment, as in the findings are particularly disclosed. The work, it is shown, was completed, together with certain extras, within thirty days before May 8, 1890, when the notice of lien was duly filed. An attachment followed and was issued to the sheriff.

Proper proceedings seem to have been taken throughout for the subjection of the canal boat to the lien of the respondent The force of the appellant’s answer to the petition or application for the distribution of the proceeds of the sale, which asserts that the appellant received no notice of the application for such distribution, cannot be deemed of much importance, inasmuch as his application is not to set aside the order made by the county judge for want of proper notice, but rather to reverse it on the ground that the sum has been awarded to the wrong party.

In view of the testimony and of the findings of fact it also appears to us that 'the contention made by the learned counsel for the appellant, that the respondent could not enforce the lien claimed, because he was not of the description of persons whom the statute so intended to benefit, but on the contrary was in reality the owner of the vessel, cannot prevail upon this appeal. In the application for the lien by the appellant under date of May 21, 1890, Chester A. Bell is mentioned as the person who incurred the indebtedness to the applicant as the builder of this canal boat The bill of items runs as follows :

“ 0. J. Hamilton, sold to boat 1 Sensation.’

“Per Mr. Bell.”

In the further document or answer filed by the appellant' it is conceded that the respondent was prior to him in the lien. But it is denied that Chester A. Bell was the sole owner of the vessel, but that on the contrary the vessel was built by Homer and Bell under an agreement which is set forth as an appendix to the answer. But there is nothing in the agreement, nor in the evidence, to show that Homer was to remain the owner of the vessel until it was completed. On the contrary the case shows that it was clearly contemplated by the party that Homer was a contractor for Bell, and as such was entitled to his lien for the unpaid moneys for constructing the canal boat. The statute expressly gives the lien to a person who has bestowed work or furnished materials for the building of the vessel. Laws of 1862, chap. 482, § 1.

The order appealed from should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


author: Lewis, J.

text:
    Charles Hartshorn, Resp’t, v. Ransom N. Chaddock, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October S3, 1891.)

    1. Riparian owners—Unlawful obstruction of stream.
    Plaintiff and defendant were owners of lands on opposite sides of a non-navigable creek, which in times of freshets overflowed the land on the north, against which plaintiff had guarded by piling. Defendant drove piles in the creek extending thirty feet into the channel and beyond those of his neighbors, and filled in with earth, stone and rubbish. An unusual freshet, but one of periodical occurrence, caused by a heavy rain, followed, and a portion of plaintiff’s land and personal property thereon were carried away. The referee found that this was caused by defendant’s obstruction of the creek and that plaintiff was entitled to damages. Reid, no error, and that defendant could not claim that he was not responsible because the freshet was of an unusual character; that he had no right to create a nuisance and speculate as to the probable consequences of his act.
    2. Same—Damages.
    Where the plaintiff’s property, in such a case, is a city lot, prepared for use as a lumber yard, the cost of refilling it is a proper item of damages.
    Appeal from a judgment of this court entered in Steuben county upon the report of a referee, in favor of the plaintiff, for $866,25 damages and $330 costs.

      Daniel L. Benton, for resp’t; Hakes, Page & Acker, for app’lt.
   Lewis, J.

The referee found as facts that Oanacedea creek is a non-navigable stream of water flowing in a northeasterly directian, and in nearly a straight course, between Main and Genesee streets, in the city of Hornellsville, N. Y., and was so May 31, 1889, except as obstructed and dammed by the defendant’s piling in the rear of his lot; that the plaintiff was the owner in fee, on May 31, 1889, of a lot of land lying upon the southerly side and adjacent to said creek, opposite the land of the defendant; that the average width of the channel of the creek was originally about' 140 feet, with low and sloping banks between Main and. West Genesee streets, and that in time of ordinary high water or freshets the waters of the creek were accustomed to overflow the banks thereof and to cover the land generally north of the stream or adjacent to its left bank, some 100 feet from its present location and channel, and that at such times there was some overflow of the lands of the plaintiff; that the bed of the stream between the streets mentioned had been from time to time changed to the south by the filling in of the land upon the northerly side thereof ; that the plaintiff and his grantors had driven piles along the bank of the creek adjacent to his lands opposite and above and below the defendant’s lands and covered the same with plank, and raised the bank along the creek on his lands, to protect the same and prevent the stream from further encroaching upon and. washing away his land; that such planking did not impede, obstruct or hinder the flow of the water in the creek as it was originally accustomed to flow; that during the summer of 1888 the defendant drove and caused to be driven on the northwesterly side of the creek and opposite the plaintiff’s land a number of piles, and caused and procured others to be driven along the bank of the creek above and below his premises, extending and projecting southeasterly into the channel of the creek a distance of from twenty-three to thirty feet, the same being slightly curved, and that the piles were higher above the ground than the plaintiff’s land on the opposite bank; they were sheeted with plank from the bottom to the top of the piles, and that he filled in in the rear of the embankment with dirt, stone and rubbish nearly to the height of the planking, and so constructed it as to prevent the flowing of the water of the creek through the obstruction, and formed the piling and embankment a solid dam or obstruction extending into the channel of the creek as it then flowed, and obstructing the flow of the water for nearly one-third of its width, as it existed before the embankment was constructed, and narrowed the channel at least twenty feet more than the average width of the stream at the points above and below the obstruction of the defendant, between Main and West Genesee streets; that the obstruction was maintained until the 1st of June, 1889 ; that it was an illegal obstruction to the flow of water in the creek in times of high water or freshets, and dangerous to lands on the opposite bank of the stream; that on and previous to the 31st of May, 1889, the plaintiff was the owner of the land opposite such piling and obstruction on the southerly bank of the creek and extending down the stream southeasterly below the same ; that on the lands of the plaintiff was stored and located a large amount of personal property, consisting of wood, lumber, shingles, wagon, and other property belonging to the plaintiff; that on the night of May 31, 1889, and morning of June 1st there was a long heavy rain and the water of the creek was raised several feet in height, and was largely increased in volume and velocity; that during such rise and freshet the waters were dammed and obstructed by defendant’s piling, and displaced and forced to the southerly bank upon the lands of the plaintiff and against the plaintiff’s piling, breaking down the piling and embankment of the plaintiff, overflowing his land opposite to and below the defendant’s obstruction and injuring and destroying said personal property; that defendant’s obstruction prevented the water from passing down the stream as it would had the planking and embankment not been placed there; that sixteen hundred yards of the earth on plaintiff’s lot were thereby washed away, and he suffered damages in all to the amount of $866.25; that the freshet was not usual or frequent in the creek, but was of the kind or volume of water and velocity of current that has periodically occurred in the past and is liable to occur in the future from heavy rains or melting snows, and that when such freshets occur the waters must be forced out of the channel over upon the lands of the plaintiff by the obstruction so constructed by the defendant

He found as a conclusion of law that the plaintiff was entitled to judgment against the defendant for the sum of $866.25, with costs.

There was evidence tending to show that while the defendant was engaged in constructing the embankment he was remonstrated with and admonished of the probable consequences which followed. While the proof shows that others had also encroached upon the bed of the stream by driving piles on the northerly side, there would have been left a space of ninety feet in width, which would have been sufficient to pass the waters of the stream had it not been for the obstruction constructed by the defendant.

We think the referee’s findings of fact and law are sustained by the evidence.

The plaintiff as owner of lands upon the creek was entitled to have the waters of the stream pass along without unnecessary obstruction.

The appellant contends that the freshet was of such an unusual character that his client should not be held responsible, as such a freshet could not have been expected to occur. The cases referred to by appellant’s counsel to sustain this doctrine have no application here. If his piling had been rightfully placed where it was, the question would then have been presented whether he had used reasonable care in its construction. But the doctrine invoked by the appellant does not apply where the obstruction is a nuisance and unlawful, as in this case. He had no right to create a nuisance and speculate as to the probable consequences of his act. Salisbury v. Herchenroder, 106 Mass., 458, and the cases there referred to.

The evidence, moreover, tends to show that the creek had been as high on several other occasions, and that such freshets were likely to occur. The appellant contends that the embankment of the owners of land’adjoining the defendant’s contributed to the damage sustained by the plaintiff, and that it was error to find that the defendant was responsible for the entire damages. The difficulty with this contention is, that the evidence tended to show, and the referee has found, that the embankment of the defendant was the sole cause of the injury to the plaintiff’s property. Had his embankment been on a line with the embankments above and below him, the referee finds that the waters would have passed along and not injured plaintiff’s property. The water carried away sixteen hundred cubic yards of earth from the plaintiff’s lot The proof shows that it would cost from twenty to twenty-five cents a yard to replace it. It was a city, ot- prepared and used by the plaintiff as a wood and lumber yard. It required refilling in order to be available. The cost of refilling it was a proper item of damages. It was not like the case of loss of soil on agricultural lands, where replacing the soil would cost more than the land would be worth when filled.

In such a case the damages would be the difference in the' value of the land before and after the injury. The brush and stone the plaintiff caused to be placed against his piling upon the southerly side of the creek did not obstruct the flow of the stream, so the referee finds.

We find no errors in the admission or rejection of evidence, and there does not appear to be any reason for the reversal of the judgment.

The judgment should be affirmed, with costs of the appeal.

Dwight, P. J., and Macomber, J., concur.


text:
    Sylvester C. Clark, App’lt, v. John House, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Appeal—Case.
    A certificate in a case that it contains all the evidence and other proceedings had upon the trial which are in any way material to the questions to be raised by the appeal, is sufficient to raise questions of fact in the appellate court.
    3. Same.
    The case should not contain the objections and exceptions taken by the respondent.
    3. Bills and notes—Dischap.ge op surety.
    Defendant’s former partner B. borrowed the money which he put in as capital of plaintiff, and gave a note therefor signed by himself and defendant. Subsequently the firm was dissolved, B. assuming payment of the debts. In an action on said note it was claimed that the note had been extended without defendant’s consent by the acceptance of B.’s note, and that defendant was thereby discharged from liability. There was evidence consisting of plaintiff’s admissions that there was such an extension, but plaintiff and B. testified that the individual note was not in fact given. Held, that defendant was but a surety, and that the preponderance of the evidence was not so much in plaintiff’s favor as to require a reversal.
    4. Same—Extension.
    An inquiry made by one of a firm when a note is given as to whether it could be extended if request therefor should be made, cannot be said to amount to an agreement for such an extension.
    5. Same—Consideration.
    The individual note of B. formed a valuable consideration for the agreement to extend the joint note.
    Appeal from a judgment entered February 19,1891, in Monroe county, upon the report of a referee, to whom it was referred to hear, try and determine the issues raised by the answer of the defendant, John House. The other defendant, William T. Bradley, made default and the action was tried against the defendant House, and the referee dismissed the complaint as to him, with costs.

      Shuart & Southerland, for app’lt; George U. Warner, for resp’t.
   Lewis, J.

The plaintiff commenced his action to recover upon, a promissory note made by Bradley and House for $300, bearing date November 14, 1885, due one year from date, with use. When the note was made House and Bradley were copartners in the greenhouse business in the city of Rochester. House had, before making the note, furnished $500 as capital for the copartnership, which sum was used in fitting up the greenhouse property.

Bradley agreed to put into the partnership, as capital, the sum of $300, and borrowed that sum of the plaintiff, and for the purpose of securing its payment made the note in suit and procured the defendant House to sign the same and delivered it to the. plaintiff.

The $300 were used in purchasing a boiler and iron pipe for the greenhouse. Before the maturity of the note the defendants-dissolved their copartnership. Bradley took the business and assumed to pay the firm’s liabilities, and to secure House for the money he had put into the business he gave him a chattel mortgage upon the greenhouse property, including the iron pipe and boiler purchased with the money represented by the note in suit House interposed the defense that he was simply a surety on the note and that when the note fell dim the plaintiff accepted the individual note of Bradley for $300, due in one year, in full payment for the note in suit, and thereby discharged him; and he further claimed that by taking the note of Bradley the plaintiff extended the payment of the note sued one year and thereby discharged the defendant from his liability thereon.

The action was duly referred, and the referee made his report, and found as facts the making of the note, as alleged, and that before the maturity of the note the defendant House sold and transferred his interest in the copartnership to the defendant Bradley, and that at the maturity of the note the plaintiff made an agreement with the defendant Bradley for a valuable consideration by which the payment of the note was extended for the period pf one year, without the consent of the defendant House, and, asa "conclusion of law, that the extension of payment of the note released and discharged the defendant House from any liability on the note, and, thereupon, dismissed the plaintiff's complaint as against the defendant House, with costs against the plaintiff. J udgment was entered upon the report against the plaintiff, and he appealed therefrom to this court. The evidence quite clearly established that Bradley was the principal debtor, and that House was simply a surety. The appellant concedes that House was •only a surety on the note, but contends that the evidence did not warrant the referee’s fifth finding of fact, that at the maturity of the note the plaintiff made an agreement with the defendant Bradley for a valuable consideration by which the payment of the note was extended for the period of one year without the consent of the defendant House. The respondent claims that the appeal fails to bring up questions of fact for review, because the case does not certify that it contains all the evidence given on the trial. The case contains the following statement: “ The foregoing is all the evidence and other proceedings had upon the trial of this action, which are in any way material to the questions to be raised by this appeal.’’ It has been held in a number of cases that a certificate that all the evidence is in that bears upon the ■questions to be raised, is sufficient to raise questions of fact in the .appellate court. It is claimed by the respondent that the statement that it contains all the material evidence leaves it with the appellant to sáy what is or what is not material evidence. It is difficult, we think, to distinguish' between a statement that the case contains all the evidence bearing upon the questions .to be reviewed and one that it contains all the material ■evidence. The appellant, in proposing his case, stated that it contained all of tne testimony in any way material to the questions he wished to raise. If he omitted any testimony which the respondent thought should have gone into the case, he was at liberty to ask its insertion, and when the case was settled, if it •contained all the testimony in any way material to the questions to be raised, it must be held, we think, that the questions of fact are before the appellate court for review.

The evidence shows that the note in suit was for Bradley to pay; that before it fell due the copartnership was dissolved, and Bradley assumed payment of the firm’s debts. Before the bringing of this action he had failed and was irresponsible pecuniarily.

The principal contention on this appeal is whether at the maturity of the note in suit the plaintiff accepted the individual note of Bradley payable one year from its date for the note signed by House, and thereby extended the payment thereof for the period of one year without the consent of House.

There was evidence, consisting mainly in the admissions of the plaintiff, sufficient to satisfy the referee of that fact, and he so found. The plaintiff and Bradley both testified that no such agreement was made and that the individual note claimed to have been made by Bradley was not in fact executed or delivered to him. We cannot say that the evidence upon this question so preponderates in favor of the plaintiff as to justify this court in setting aside the referee’s report and reversing the judgment The appellant claims that if there was an extension of the time of payment of the note in suit, it was pursuant to a request that it might be so extended, made by the defendant House at the time he signed the note, if the firm should not be able at the time it matured to pay the note.

The testimony bearing upon this question consisted simply in an inquiry on the part of House of the plaintiff if he would extend it in case he was requested so to do, and cannot be said to •amount to an agreement between the parties for such an extension. House being surety on the note, the talcing the individual note of Bradley in place of the note of Bradley and House, under the circumstances testified to by defendant’s witnesses, must have discharged House. Waydell v. Luer, 3 Denio, 410; Luddington v. Bell, 77 N. Y., 138-141; Hubbard v. Gurney, 64 id., 466; Mc-Nulty v. Hurd, 86 id., 552.

The individual note of Bradley formed a valuable consideration for the agreement and postponed the payment of the House note. “An individual obligation may be a higher security than that of a partnership. A debt due from partners may not always be as substantial and safe as a debt against one of them, for such copartnership debt must be first collected out of the copartnership assets and not out of the individual property of the several partners until all these are exhausted, and then only after the individual debts are fully paid.

The referee did not find that the arrangement to take the individual note of Bradley acted as an actual payment of the first note, but held it extended the time of its payment, and therefore as effectually discharged the defendant as the payment of the note would.

The findings of the referee in answer to the requests of the respondent, and the respondent’s exceptions to such findings, are printed in the case and are referred to by the appellant for the purpose of showing that the referee’s rulings upon these requests are inconsistent with his report These findings do not properly belong in the case and cannot avail the appellant. The case should not contain the objections and exceptions taken by the respondent. Beach v. Cooke, 28 N. Y., 508.

The written agreement dissolving the copartnership was competent evidence showing that when the agreement extending the time of payment of the note was made the defendants were no longer copartners, and as Bradley had assumed to pay the firm debts, House was simply a surety upon the note.

The chattel mortgages received in evidence against the objections of the plaintiff were possibly corroborative of the agreement of dissolution. They were not very material evidence, but we fail to see that the plaintiff’s case suffered any injury by their introduction in evidence.

The other questions raised by the appellant in his brief have been examined, but do not appear to us of sufficient importance to warrant discussion.

We think the report of the referee sustained by the evidence and that the judgment appealed from should be affirmed, with costs of the appeal against the appellant.

Dwight, P. J., and Macomber, J., concur.


author: Rumsey, J. Per Curiam.

text:
    De Witt C. Reed, Resp’t, v. Nathaniel Chilson and Chester Chilson, App’lts.

      {Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    1. Jurisdiction—Appearance.
    A general appearance in a court of general jurisdiction, having jurisdiction of the subject matter, confers jurisdiction completely of the par-' ticular case, and such jurisdiction is not divested by the subsequent service of an answer denying the jurisdiction of the court.
    2. Same—Non-resident parties.
    Where it appears that the defendants have no property in the state in which a judgment has been recovered against them, and that they have property in this state which can only be reached by a creditor’s action, the courts of this state will not refuse to entertain an action on the judgment on the ground that all the parties are non-residents.
    3. Bar—Pendency of foreign action.
    The pendency of an action in a foreign state is no defense to an action here. If advantage is sought to be taken of the fact that judgment was recovered in such action after answer here, it should be pleaded by supplemental answer.
    Appeal from, a judgment entered in Monroe county in favor of the respondent, and against the appellants, on the 20th day of March, 1891, for $3,319.48.
   The following is the opinion at circuit:

Rumsey, J.

The plaintiff and the defendant Chester Chilson reside in Michigan, and the defendant Nathaniel Chilson resides in North Dakota. The action is brought upon a judgment recovered by the plaintiff against the defendants in a court of the state of Michigan on the 9th' day of August, 1887. The summons in this action was served' by publication, and no attachment has been levied upon property of the defendants within the state. After the service by publication, the defendants appeared generally in the action by an attorney of this court, who served a notice of retainer. About three months afterwards answers were served setting up several defenses, among which was one denying the jurisdiction of the court, and this answer raises the serious question in the case.

The Code provides that a general appearance is equivalent to personal service of the summons upon defendant Code Civ. Pro., § 424. It has always been held that where a court has jurisdiction of the subject matter of the action, a voluntary appearance gave jurisdiction to make a valid adjudication upon the rights involved in. the action. Jones v. Jones, 108 N. Y., 415-425; 13 N. Y. State Rep., 838; Olcott v. Maclean, 73 N. Y., 223.

There are cases where the court has no jurisdiction of the subject matter, in which an appearance does not give jurisdiction. But in all such cases the fault was that the court in which the appearance was made had no power to hear and decide the particular, case because of some other reason than that the defendant had not been properly brought into court. They are all cases where the court had no jurisdiction of the cause. Burckle v. Eckhart, 3 N. Y., 132; Landers v. Staten Island R. R. Co., 53 id., 450; Wheelock v. Lee, 74 id., 495; Perkins v. Perkins, 7 Conn., 558. With the exception of cases of that kind it is believed that the rule is invariable that a general appearance in a court of general jurisdiction, having jurisdiction of the subject matter, confers jurisdiction completely of the particular case.

In this case the action was on contract, of which the court had jurisdiction, although the parties were non-residents. Burdick v. Freeman, 120 N. Y., 420; 31 N. Y. State Rep., 427. When the notice of appearance was served on the 30th of January, 1890, the court acquired the same jurisdiction as though personal service of the summons had been made within the state, because the Code thus prescribes. Ro other authority need be cited, but other authority is nevertheless abundant. Olcott v. Maclean, 73 N. Y., 223 ; Carroll v. Lee, 3 G. & J., 504; 22 Am. Dec., 350; Jones v. Jones, 108 N. Y., 415; 13 N. Y. State Rep., 838. From the time of that service then the court had full jurisdiction in the •case. It hardly needs the citation of authority to show that the jurisdiction thus vested was not divested by the subsequent service of an answer denying the jurisdiction of the court. That would seem to be a self evident proposition, and it has so been held. Palmer v. Phœnix Mut. L. Ins. Co., 10 Wk. Dig., 179. When the general appearance was served the court either acquired jurisdiction, or it did not If it did, from that time it had the power and authority to make a valid adjudication, such as the facts required.

That power having once been acquired its existence cannot afterward be questioned in the action. Carpentier v. Minturn, 65 .Barb., 293. This case like the one last cited was decided by the general term of the first department. So much time would not have been occupied on this subject but for the case of Hamburger v. Baker, 35 Hun, 455, in which it.is held that where the defendant appears generally by answer he may still raise the question of jurisdiction. In that case the appearance was made by the service of an answer, which the Code says is a general appearance. It differs from the two cases last cited for the reason that in those cases the answer denying the jurisdiction was served some time'after the notice of retainer. But I do not think that difference affects the principle. The appearance consists in the service of the answer and the contents of the answer cannot change the effect produced by its service which is prescribed by the Code. It will be noticed that the Hamburger case pays no attention to § 424 of the Code. Ro cases are cited to sustain the decision. I have looked carefully and can find but two in which the precise question was presented, and in each of those cases the decision was just the other way from that in the Hamburger case. Olcott v. Maclean, 73 N. Y., 223; Carroll v. Lee, 22 Am. Dec., 350.

In the case of Wheelock v. Lee and the others cited above, in which the objection to the jurisdiction was sustained after the entry of a general appearance, the ruling was put upon the ground that the want of jurisdiction was not because the defendants were not properly in court, but because the court had no power to determine the matter submitted to it. In each of those cases it was assumed that if there had been jurisdiction over the subject matter the appearance would have given complete power over the person, notwithstanding the plea. I do not think the case of Hamburger v. Baker was correctly decided and it should not be followed.

My conclusion is that the court has jurisdiction of this action.

The defense of a former judgment in this.state is not available for the reason that there was clearly no jurisdiction to render it.. There was no personal or other service in this state; no appearance, and no levy of an attachment. Pennoyer v. Neff, 95 U. S. 714; McKinney v. Collins, 88 N. Y., 216. The pendency of the action in the court of Michigan was no defense. Williams v. Ayrault, 31 Barb., 364. If advantage was desired to be taken of the fact that judgment had been recovered in that suit after the-answer had been interposed in this, it should have been pleaded by supplemental answer.

The plea of the statute of limitations cannot succeed here. The judgment sued on was entered in 1887. If the statute had run against the right to enter judgment for deficiency, it should have been pleaded in Michigan, for that plea is only matter of defense which must be set up. It seems from the opinion of Judge Hooker, in the judgment roll, that the statute was pleaded in that court and the decision was against defendant. A question has arisen in my mind whether, as all these parties .are non-residents, the court should not, in its discretion, refuse to entertain the action. But I have concluded that the case should proceed to-judgment. It appears that the defendants have no property in Michigan'and that an execution on the judgment has been returned unsatisfied in that state.

There is reason to believe from the evidence that they may have some interest in property in this state which can be reached, if at all, only by a judgment creditor’s action. Ho such action can be brought unless judgment has been recovered and execution issued and returned unsatisfied.

That such step may be taken it is proper to order judgment in this action.

Myron H. Peck, Jr., for app’lts; Edwin McKnight, for resp’t.

Per Curiam.

The judgment should be affirmed, with costs, against appellants, upon the opinion of Justice Rumsey at circuit.

Dwight, P. J., Macomber and Lewis, JJ., concur.


text:
    Alexander S. Turner, Resp’t, v. William W. Weston et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Partnership—Joint adventure—Accounting.
    Plaintiff and his assignor having an opportunity to purchase a tract of timber land, made an arrangement with defendants by which they were jointly to buy said lands, convert the timber into lumber and shingles and.

      dispose of the same; defendants to do the manufacturing and pay to plaintiff and his assignor one-half the net profits. The business under this arrangement was continued for a series of years, defendants rendering accounts of the manufacture and sales, which plaintiff claimed were incorrect. Held, that whether the parties were copartners or not, their relations were such as to entitle plaintiff to maintain an action for an accounting.
    2. Sam—Counterclaim.
    In such an action a claim by defendants against other firms of which plaintiff was a member is not a proper item to be taken into consideration, although some of the lumber manufactured on joint account formed a part of the sales for which the claim is made, especially where it appears that the lumber was commingled in the mill and defendants charged themselves with the joint lumber.
    Appeal from a judgment of $70,536.33 in favor of the plaintiff against the defendants, entered upon the report of a referee in the office of the clerk of Cattaraugus county January 25, 1886.

      Roswell R. Moss, for resp’t; Bolles & Waring, for app’its.
   Lewis, J.

The plaintiff and a Mr. Boss having the opportunity of purchasing a large tract of pine timber lands in the state of Pennsylvania in the year 1863, entered into an agreement with defendants, who possessed large facilities for manufacturing and selling lumber and shingles, and were doing busines as a firm under the name of Weston Brothers. By the terms of the agreement the parties were to purchase the Pennsylvania lands, consisting of about 2,000 acres, and were to proceed to convert the timber thereon into lumber and shingles. The plaintiff and Boss were to own an undivided half interest and the defendants the other half. The defendants were to take sole charge of converting the timber into money, and account to the plaintiff and his partner Boss for one-half of the profits, after deducting the cost and expenses of manufacturing and selling the lumber and shingles. The defendants entered upon the performance of the work in the year 1864, and continued the business for about twelve years. Mr. Boss in the year 1869 transferred his interest in the contract, lands and business to the plaintiff. At the commencement of each year the defendants rendered to the plaintiff a statement of the transactions of the previous year. The statements purported to give an accurate account of the logs cut and skidded, the quantity delivered at the mill, the amount of boards and shingles manufactured and of the sales, and a detailed statement of all expenses attending the business. The plaintiff had nothing to do personally with the business of manufacturing or selling lumber. The parties selected as the name of their business or copartnership the figure 5, and the business was done and the accounts were kept in the name of “5 lumber.”

Satisfactory statements of the business were rendered to the plaintiff annually up to the year 1868. Upon the receipt of the statement of account for the year 1868, the plaintiff complained, to the defendants that it did not contain a full account of all the lumber manufactured and sold for that year. The plaintiff continued to complain as to the correctness of the accounts down to the year 1878, when he commenced this action against the defendants for an accounting of the transactions concerning the business. The case was referred to the Hon. Charles E. Parker, as sole referee, to hear, try and determine.

The trial commenced in 1878, and was confined from time to time for more than seven years, and on the 15th day of January, 1886, the referee made a report, and found that the relations existing between the parties was that of copartners; that the total amount of pine lumber manufactured by the defendants from the tract, exclusive of shingles, was 31,625,284 feet; that the total amount of pine lumber sold by them, exclusive of shingles, for which they had rendered an account, was 24,832,097 feet, and that they had on hand, unsold, 92,655 feet, leaving a deficiency between the amount sawed and the amount accounted for as sold and on hand, 6,700,530 feet; that the natural and ordinary waste and shrinkage arising from defective logs, breakage, errors in measurements in accounts rendered by the sawyers, and from all other causes naturally and usually incident to the manufacture and selling of such lumber, did not exceed 3,700,530 feet; that the balance of the deficiency, namely 3,000,000 of feet, had been appropriated by the defendants to their own use, in addition to the amounts which they had credited to the business in their accounts, and that the value thereof should be charged against them in the accounting; that such deficiency had accrued and been appropriated by the defendants to their use in different amounts during the years from January 1, 1869, to January 1, 1878, and that the average value of the total amount of lumber belonging to “ 5 ” sold by the defendants during those years was $20.14 per thousand feet; and that the 3,000,000 feet charged against the defendants was of the average quality of lumber and was of the value of $60,420 at the time it was appropriated.

He further found that in addition to the pine lumber the defendants took off from the tract and manufactured into lumber and sold during the time mentioned 195,680 feet of hard-wood lumber, and had only accounted for 44,088 feet thereof, leaving a balance of 151,592 feet unaccounted for, and which they bad appropriated to their own use, and that this hard-wood lumber was worth $27 a thousand feet, amounting in value to the sum of $4,092.90. The defendants had on hand at the time of the commencement of the action a considerable quantity of lumber which they appropriated, and for which they should be charged. The referee finds that there was no agreement fixing the price for such lumber, but that it was worth $20.14 a thousand. There was a quantity of shingles on hand which, by arrangement between the parties, was charged to the defendants and forms part of the amount found due from the defendants by the referee.

The referee found that the defendants were indebted to the co-partnership in the sum of $132,228.68, and that the plaintiff was entitled to judgment against the defendants for one-half of such sum, with costs, and directed judgment to be entered accordingly.

The contention ot the appellants that the referee erred in finding that the relation between the parties was that of copartners is of no importance, for whether copartners or not, their relations conceded!/ were of such a character as to entitle the plaintiff to maintain this action for an accounting. The plaintiff was a member of several firms dealing in lumber, and the defendants from time to time sold to these firms quantities of lumber. A part thereof was the “ 5 ” lumber and the balance was lumber belonging to the defendants obtained from other sources.

The evidence tended to show that there was a balance of about $15,000 due to the defendants from these various firms on account of lumber thus sold. The defendants sought upon the trial to be allowed, as a counterclaim, this sum of $15,000. The referee refused to allow the claim and the appellants contend that he erred in so finding. The action, as we have seen, was for an accounting between the parties as to transactions growing out of the lumber manufactured and known as “5 lumber.” This claim was not against the plaintiff individually, but was against the different firms of which he was a member. ISTo counterclaim is pleaded in the answer; no mention is made of this claim.

There was not, therefore, any issue before the court for trial as to this claim of $15,000; while it is true that some of the “ 5 ” lumber went to make up this claim, that is a matter of no importance in view of the manner in which the defendants transacted the business of the “ 5 ” lumber. While the defendants were engaged in manufacturing the number 5 lumber they were, at the same time, sawing large quantities of other lumber in the same mill. They charged themselves with the “5 ” lumber and with the proceeds of the sales and credited themselves with the expenses of the business, treating the lumber as their own. The claim belonged to the defendants and not to the firm. It was not a proper item to be taken into consideration in accounting between the members of the firm, and it was so held by this court in an action which was brought by the appellants against the assignee of this judgment to obtain a judgment directing the claim of $15,000 to be set off against the judgment. Weston v. Turner, 8 N. Y. State Rep., 296.

Appellants further claim that the referee erred in finding that the defendants had failed to account for all of the “ 5 ” lumber and had appropriated the amount mentioned. The defendants, as we have seen, had the entire charge and control of the manufacture and sale of the lumber. Plaintiff had nothing to do with the details of the business; he did.not reside near the mill where the lumber was. being manufactured; the enterprise involved large interests and responsibilities on the part of the defendants. It was incumbent on them to keep strict and accurate accounts of the manufacture and sales of the lumber. There was a very large amount of evidence tending to show that the business was carelessly and negligently performed by the defendants and their employes ; the accounts were kept in a very unsatisfactory manner. There was a large and surprising discrepancy appearing in their accounts between the amount of lumber manufactured and the sales.

The amount of lumber sawed as shown by the saw bills was 31,625,284 feet; the amount reported as sold and on hand was but 24,924,752 feet, a shortage of 6,700,530 feet. The defendants gave evidence tending to explain this shortage by the natural wastage of lumber between the saw and the sales. The evidence upon this subject was very conflicting, and the referee found from the evidence that the natural and ordinary waste from all of these causes did not exceed 3,700,530 feet, and that the defendants had failed to account for 3,000,000 feet of the pine lumber manufactured from the tract, and we think this finding of the referee was sustained by the evidence.

There was an attempt made at the mill to keep No. 5 lumber separated from other lumber being manufactured at the same time, but the evidence tended to show that the various brands of lumber were commingled while being sawed, piled and sold, which may account in a measure for the errors of the defendants in the management of the business.

As we think the referee’s findings of fact are sustained by the evidence, it is unnecessary to consider the questions discussed at such great length in the briefs of counsel, as to whether the referee’s findings of fact are properly before this court for review.

We have examined the exceptions of the appellants to the admission and rejection of evidence, and' find nothing in them justifying a reversal of the judgment. The trial of the case extended over a period of more than seven years. A very large amount of testimony was taken, and the learned referee appears to have given the case an exceedingly careful and intelligent consideration, and we think his conclusions did no injustice to the defendants.

The judgment should be affirmed, with costs of the appeal against the appellants.

Dwight,P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    Margaret Devlin, Resp’t, v. Robert Boyd et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Injunction—J udgment—Fraud.
    An injunction to restrain proceedings to collect a judgment should not he granted in an action to set aside such judgment on the ground of fraud, where neither the complaint nor the affidavits show facts which would justify a finding of fraud, but only that plaintiff is ignorant in respect to the creation of the debt upon which it was obtained, because it was created by her agent, now dead.
    Appeal from order continuing preliminary injunction.

      A. Kohn, for app’lts; G. P. Gordel, for resp’t.
   Per Curiam.

This action was brought to set aside a judgment entered in the city court upon the ground that it was fraudulently obtained. Neither the complaint nor the affidavits accompanying the same, upon which it is sought to maintain this injunction, discloses any state of facts that would justify a finding of fraud. All that can be deduced from the affidavits is that the plaintiff is ignorant in respect to the creation of the debt upon which the judgment was obtained, because such debt was created by her agent, who is now dead. The plaintiff further fails in any way to ■connect the notes mentioned in the affidavits with the cause of action upon which the judgment was obtained in the city court.

We think that the evidence before the court was insufficient to justify the continuance of the injunction, the statements of the plaintiff being unsupported by any proof.

The order should be reversed, and the preliminary injunction •dissolved, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Patterson, J. Per Curiam.

text:
    Michael Gernsheim et al., App’lts, v. The Central Trust Co. of New York et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Railroad—Reorganization—Assessment.
    On the reorganization of a railroad, the trust company defendant was anpoin ed to ascertain and fix the amount to be paid by the stockholders of the old company in order to obtain the new stock, and to distribute the same. Held, that it was not necessary for the trust company to' give the stockholders notice of the times and places when it would proceed to gather information and pass on the .questions involved. If the stockholders wished to be heard they should have demanded a hearing.
    2. Same.
    Certain of the officers of the trust company made an attempt to fix such assessment, but their acts were not ratified by the board of directors. Held, that as such act was a nullity the power of the company to fix .an assessment was not exhausted by such attempt.
    •3. Same—Liens.
    The reorganization scheme was unavoidably delayed, and the trust company included .in the assessment interest accrued upon the new mortgage bonds and debenture bonds as a liability incurred in the reorganization. Held, that as there was neither fraud nor collusion on the part of the company, the court would not interfere with their decision.
    Appeal from order denying motion for preliminary injunction.
   The following is the opinion at special term:

Patterson, J.

The complaint in this action contains allegations of fraudulent conduct on the part of some of the defendants (other than the Central Trust Company) in the procurement of the decree of foreclosure in the consolidated suit in Texas and in the various proceedings which culminated in the entry of that decree. In the .former suit brought in this court by the present plaintiffs those same matters were considered, and it was held at the special and general terms, in substance, that whatever might be the equities respecting such matters this court was without jurisdiction to afford relief, and that the plaintiff must seek redress in the tribunal which alone had cognizance of the subject. But in the complaint in the former suit were certain charges made against the Central Trust Company in connection with its conduct in an attempt to fix the amount to be paid by the stockholders of the Houston & Texas Central Railway Company (No. 1), to enable them to take shares in the new corporation under the terms of the ninth clause of the reorganization agreement. Upon the trial of that causa it was held that the plaintiffs were entitled to enjoin the trust company from issuing shares in the new corporation for the reason that the trust company had not performed the duty incumbent upon it under the reorganization agreement, with reference to the ascertainment of what the floating debt of the old company and the charges, expenses and liabilities incurred in carrying out the plan of reorganization were. To quote the language of the learned judge before whom the case was tried, for the reason, therefore, that the trust company did not in the manner and pursuant to the terms of the reorganization agreement, fix and determine the assessment, the plaintiffs are entitled to-judgment.”

After the decision of the former suit the trust company undertook to and did make another assessment, and it determined that the stockholders of the old railway corporation, to entitle themselves to shares of the new company, must pay 7140-100 per cent of the par value of their old shares. All that we have to deal with on this motion relates to the action of the trust company in. fixing this amount, and that action is challenged on the following; grounds, viz.:

1. That the entire assessment is void because the trust company failed to give the stockholders an opportunity to be heard.

2. That the powers of the trust company were exhausted after it made the so-called first assessment.

3. That when the trust company made the so-called first assessment, it could not, from the attitude .it then (and subsequently) assumed; be impartial in making a second assessment.

4. That certain errors have been committed by the trust company in including in the aggregate of the assessment of 71 40-100 per cent., items which were neither part of the floating debt of the old company nor of the charges, expenses and liabilities of the reorganization.

The complaint also charges upon the trust company fraud in making up the assessment of 71 40-100 per cent., but on the argument of the motion that charge was expressly withdrawn. There is not a symptom or trace of fraud on the part of that company in fixing the amount to be paid by the stockholders,, and it plainly appears that by its agents it gathered the data, examined the facts, made a thorough investigation, considered, the report of the agents in executive committee and also at meetings of the board of directors, and after a careful and prolonged inquiry reached a conclusion and made a statement, giving-in a formal account, and in clear and full detail, all the items entering into its final determination of the amount with which the stockholders were to be charged.

To dispose properly of the first two objections taken to the-action of the trust company, we must understand what the powers and duty of that company were with reference to fixing-the amount of the assessment. The plaintiffs claim that it. stood, if not in the technical relation of an arbitrator, then as acting under the same obligations as an arbitrator, or as a trustee, and an earnest argument has been made, the substance of which is, that the trust company should have proceeded precisely as an arbitrator would have done under a common law submission. It is not so important to define by a descriptive-term the capacity in which the trust company acted as it is to determine what it was bound to do, and for that we look to the provisions of the agreement in connection with the nature and character of the particular business with which it was entrusted. It was neither exclusively an arbitrator nor a trustee nor an appraiser. The duty it had to perform partook somewhat of the characteristics of each of these offices. It was selected by all in interest as their appointee or agent to perform that duty, which was of a peculiar nature, and to be done by it and by no one else. The stockholders who come in to take the benefit of the reconstruction agreement are just as much bound by the selection of the trust company as if they had signed the instrument delegating the power to it. It was to ascertain for all (and its conclusion was to bind all) what constituted the floating debt and the other obligations referred to. In doing this it was bound to bring to the investigation the judgment of its directors. It could not arbitrarily fix the amount nor discharge the duty in a merely perfunctory manner. But when it made the required investigation in a proper way, its determination was to be final and conclusive. In the nature of things it could not be otherwise. It was not contemplated by the parties in interest to do anything else than constitute the trust company the sole and final judge of the amount to be paid by the stockholders. Under any other interpretation the reorganization scheme could never go forward. The trust company’s situation was similar to that of the engineer in Sweet v. Morrison, 116 N. Y., 19; 26 N. Y. State Rep., 445, and that case is in closer analogy with this than those cited by the learned counsel for the plaintiffs.

But in the performance of the duty to the stockholders devolved upon it by the reconstruction agreement, the trust company was not altogether irresponsible. It was bound to proceed and make a determination in good faith, and as I had occasion to say in the former cause, it was part of its duty to furnish a full and open account of the items it adopted as making up the total amount with which the stockholders were to be charged. Without such an account it would be impossible for those stockholders to know whether the trust company had fully and properly performed what was required of it. They were entitled to that information, and it has now been given them.

By that account they are enabled to tell whether the trust company has included items which cannot be regarded either as part of the floating debt, or charges, expenses and liabilities of the reorganization, for by whatever name the trust company may be called, in exercising the power conferred upon it, I apprehend no court having jurisdiction would hesitate to grant appropriate relief if it undertook to force upon the stockholders the burden of claims which in no sense or manner and by no possible fair construction of the reorganization agreement came within its terms as being chargeable against them. And therein, in my judgment, consists all the power the court has to supervise or review the action of the trust company, and the court will not interfere with its determination, of what should be taken into the account and made part of the: ascertained debt, expenses and'liabilities, if the j udgment of the trust company has been honestly and fairly exorcised upon any doubtful or disputable question that may have arisen in the course of the investigation.

Concerning the first objection stated to the action of the trust company in fixing the assessment, viz.: that it proceeded to do so without giving the stockholders an opportunity to be heard, it is to be remarked that there is nothing in the agreement nor in the nature of the duty to be performed which rendered necessary such a hearing in the first instance. It was entirely competent to the trust company to proceed ex parte to acquire information and obtain proofs from all accessible sources. It was simply impracticable to notify stockholders of the times and places at which it would proceed to gather information and pass upon particular items. Having regard to the fact that the investigation was to be made as well at Hew Orleans and in Texas as at the city of Hew York, and that it consisted among other things of an examination of .books, papers and vouchers, all the preliminary work was necessarily to be done by the trust company alone. If the stockholders wished to be heard it was for them to demand the right, and if that were refused the court, upon good reasons shown, might be called upon to act. But no demand for a hearing was ever made by these plaintiffs, and no refusal was ever given of aid or assistance proffered by any inquiring stockholder. Had offered information been rejected, some fair ground of complaint would have existed, but Mr. Hyde in his affidavit says: “ It is not true, as insinuated in the affidavit (of one of the plaintiffs), that the determination of the trust company was made without affording to the stockholders any opportunity of being heard in reference to the matter, or without any opportunity to present any facts or objections to any items considered by the trust company. On the contrary, it was stated to all inquiring stockholders that the examination and determination was about to be made, and they were invited to furnish the trust company with any information touching any such items and any facts in their possession which might aid th e trust company in its investigation.” There is nothing in the papers contradicting this statement of the vice-president of the-trust company.

To the second objection taken by the plaintiff, it is a sufficient answer to say that the power of the trust company to make the assessment was not exhausted, for the reason that the first attempt to do so was a mere nullity. It never acted in the matter at all, and the very ground of Judge O’Brien’s decision was that it had not so acted. Certain of its officers assumed to make "an assessment. It was their- act, and not that of the company. There never was even a reference of the subject to the board of directors, and, therefore, their judgment never was passed upon it. Hor did the directors ratify or adopt the act of the officers. The company did not lose power or control simply because of the ineffectual attempt of certain of its officers to act in its name. The suggestion that the power of the trust company to make the final assessment was terminated by the notice of June 17, 1890, has been duly considered, but in my judgment is without weight.

As to the third ground of objection, it rests altogether on an unfounded assumption. The inference is drawn that the trust-company cannot be impartial, because of the attempt made previously to fix the amount chargeable against the stockholders, and the attitude of the company in the former litigation. There is nothing to show bias, prejudice or partiality on the part of the directors of the trust company, and no fact is brought forward to support this objection, while the affidavits read by the defendant effectually meet it

We are thus brought to the fourth objection, and at the outset the question arises as to the power of the court to act with reference to it. This subject of the control of the court over the trust company was adverted to by the general term on the appeal from the order continuing the ad interim inj unction in the former suit. It was then held that the stockholders could not “ enjoin the completion of the reorganization until they can investigate the claims upon which the assessment was fixed,” and that they could not proceed as for an accounting with regard to the floating debt, and obtain a final judgment modifying the action of the trust company, and that “ the proposition that the stockholders may come into a court of equity, investigate therein in a general way the justice and validity of each item comprising the floating debt, liquidate by decree the sums which should be allowed and those which should be disallowed, and thereupon settle the proper percentage of assessment, meanwhile tying up the entire reorganization, cannot for a moment be allowed. The true view of the reorganization agreement is that all this is to be done by the trust company.” What was thus said by the general term, while it clearly states that the judgment of the court cannot be substituted for that of the trust company, does not go to the extent of holding that it is powerless to grant any relief if the trust company has imposed upon the .stockholders the payment of claims which they cannot be called upon to discharge under the terms of the reorganization agreement, and as the exact complaint now made is that such claims have been imposed upon them, I have carefully examined those that have been specifically pointed out. If there is any ground whatever for regarding the items criticised as constituting part of the floating debt or charges, ex- • penses and liabilities of the reorganization, or if doubt exists with reference to any of them, and that doubt has been in good faith solved by the adoption of such items, the court cannot interfere, for. as before stated, it will not substitute its judgment for that of the trust company, nor undertake to exercise the function appropriate to that company alone, nor will it assume to review the honestly formed determination of that company upon anything which legitimately came within the scope of its power to act.

The first of the items complained of is that of interest on the new general mortgage bonds and the new consolidated and debenture bonds. The trust company has decided that this j° ° proper charge against the stockholders. It admits in its answer that it is not strictly speaking an obligation of the old corporation, and, therefore, not a part of the floating debt, but it chums that by a proper construction of the reorganization agreement it has correctly included it in the assessment as a liability “ incurred in the reorganization.” It has based its conclusion on these, among other reasons. The holders of the old general mortgage and consolidated mortgage bonds are entitled to interest, the former from July 1, 1887; and the latter from October 1, 1887, on the new bonds to be issued to them, The old bonds have not yet been delivered up and canceled, and the new ones are not issued. The reorganization has been delayed, that is, the property has not yet been turned over by Mr. Olcott, who purchased at the foreclosure sale for those interested in the reorganization, and the delays have been unavoidable. Meantime this interest has been accruing, has matured, and must be met at sometime by the stockholders either paying or providing for it. The Southern Pacific Railway Company has guaranteed it, and if it is not paid now, and that company pays it after the property is conveyed to the new corporation, it could immediately put the claim in judgment and enforce it. From the first this interest has been treated as an obligation of the reorganization. The trust company or the purchaser has received from the receiver from the earuings of the road large amounts of money, and has applied them on account of this interest It has, therefore, always acted on the construction that this interest was a liability of the reorganization to be paid before the property was transferred, and that it is such a liability because it matured during the period of suspense and before the new railway corporation entered into possession and began the operation of the road or received its revenues or its securities were issued.

These grounds cannot be said to be frivolous. They were sufficient to satisfy the judgment of the directors of the trust company, and they have acted in good faith in being influenced by them. If they are mistaken their error cannot be reviewed here, for there is neither fraud, collusion nor palpable mistake, and I cannot say that the construction they have put upon the words “ liabilities incurred in the reorganization ” is altogether without foundation.-

The Hauxhurst item is fully explained in Mr. Hyde’s affidavit.

■ Respecting the $800,000 of general mortgage bonds held by the Southern Development Company and the Morgan Company, there can be no doubt of the power of the trust company under the reorganization agreement The complaint seems to be that while interest is allowed on the whole amount of the claims of these companies, proper credits have not been made. All this subject was exclusively within the authority of the trust company, and the court cannot interfere.

As to the City Bank claim, the trust company was specifically authorized to adjust and settle it, and the’ court cannot interfere in the matter.

The allowance of the large amount of the claim of the Morgan ■Company on the notes issued in 1880 and other years, and after-wards renewed, is attacked on several grounds. It is alleged that it includes notes of $700,000 acquired on the purchase of the railway company by the Morgan Company, but Mr. Hyde shows in his affidavit that this is not so. The railway was purchased, or a majority of the stock of the company was purchased, in 1877, by Charles Morgan, and Mr. Hyde states that no notes are included in the assessment. of earlier date than July 31, 1878. The claim that debts barred by the statute of limitations have been allowed as part of the Morgan floating debt is fully answered in Mr. Hyde’s affidavit. The other considerations urged against the allowance of this Morgan company debt present matters entirely within the authority of the trust company to pass upon, and its judgment cannot now be disturbed.

The allowance of 'the claim of the Lackawanna Iron & Coal Company was also exclusively within the cognizance of the trust company.

The other items do not require particular consideration. That relating to the suits in Texas against the Houston & Texas Central Railway Company, is necessarily an estimated amount. Mr. Hyde explains how it was arrived at, and, as to the reorganization expenses, I can find nothing to show that they are exorbitant. They also must be estimated, and I see no reason to enjoin the carrying out of the reorganization on the ground that the estimate is too high.

After a very careful consideration of the whole case, I am compelled to deny the motion for the injunction. I can see no clear or satisfactory reason for doing otherwise. The trust company, I am forced to believe, has done its duty in good faith, and has exercised its best judgment in passing upon the matters to be determined by it in connection with making this assessment.

Motion denied, with ten dollars costs.

A. J. Dittenhoefer, for app’lts; Almon Goodwin and A. H. Joline, for resp’ts.

Per Curiam.

The order appealed from is affirmed upon the opinion delivered by Justice Patterson at special term.

Vaw Brunt, P. J., Barrett and Bartlett, JJ., concur.


author: Vast Wyck, J.

text:
    William Riley et al., Resp’ts, v. Alex. G. Black, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    'Contract—Reservations in.
    Parties to written contracts are bound by the express provisions thereof. A written contract for the regulating and grading of real property, which contains a provision that the owner “ reserves the right to decide after the rock has been uncovered whether he will have the same removed or not,” entitles him to decide that the same shall not be removed, and gives him the right to thereafter remove it himself or cause others to remove the same.

      Appeal from judgment entered on a verdict for plaintiffs.

      Samuel E. Duffy, for resp’ts; Bartlett, Wilson & Haden, for app'lt.
   Vast Wyck, J.

This action was based on a written contract, signed by plaintiffs and defendant, by which plaintiffs agreed to regulate and grade certain real property belonging to defendant, by excavating where the same was above the fixed grades, and filling in where the same was below such grades, for an agreed price of twenty-five cents per cubic yard of earth excavated and removed, $1.13 per cubic yard for rock so excavated and removed, and for building a stone culvert fifty cents for each lineal yard so built. This contract contains the following provisions: The party of the first part (defendant) reserves the right to determine when and where the rock found on said property shall be excavated, if at all,” and “ The party of the first part reserves the right to decide, after the rock has been uncovered, whether he will have the same removed or not, beyond such amount of rock as may be necessary to blast to build the drain or culvert.”

All the earth was excavated and removed and the culvert completed under the contract, and for all of which the plaintiffs were paid in full. But after about two thousand tons of rock had been uncovered, the defendant decided that he would not have it removed by plaintiffs, claiming that these provisions of the contract were inserted in order that he might, after the rock was uncovered and exposed to his view, determine whether it was hard or soft, tough of brittle, and whether he would pay the $1.13 per cubic yard, or have it excavated and removed for less, and he so notified the plaintiffs, to whom he made an offer to pay $1,700 in gross for excavating and removing this 2,000 tons of rock, which offer was refused by the plaintiffs, who claimed that if this rock was to be removed at all, they had the right to so remove it, and were entitled to receive payment at the rate fixed by the contract for so excavating and removing rock; and which by such rate would amount to about $2,700, or $1,000 more than the offer. The defendant failing to come to any new agreement with plaintiffs, caused this 2,000 tons of rock to be removed by another contractor, and the plaintiffs bring this action to recover $1,000, the difference between the sum which they would have received had they been permitted to remove this rock and been paid for such removal at the rate fixed by the contract and the amount which it would have cost the plaintiffs to so remove the same. The trial judge charged the jury that defendant was liable for such damages as plaintiffs had sustained by not having been permitted to remove this rock, and that the only question which the jury should 'determine was the amount of such damages. The objections made and exceptions taken by defendant clearly bring this ruling up for review. It would seem that this ruling was erroneous, for the plaintiffs, themselves, admit that under these provisions in the contract the defendant could at any time have legally refused to allow them to remove any or all of the rook after it had been uncovered and exposed to defendant’s view, but plaintiffs contend that defendant had no right to have the rock removed by another contractor. If the defendant had the right to stop the removal of rock by plaintiffs, and he undoubtedly had such right, then it cannot be seriously said that after so preventing such removal the defendant was forever barred from excavating and removing the rock from his property or from causing it to be so removed by hands other than his own or those of the plaintiffs. These provisions of the contract would seem to be reasonable, for it certainly seems fair that the defendant should have provided that he, simply an owner of no experience as to the quality and toughness or brittleness of rock not exposed to his view, should require the rock to be first uncovered in order that he might have a reasonable opportunity to determine for himself whether he would then pay the high rate for blasting and removing hard and tough rock, or the lower rate for excavating and removing soft and brittle rock, which was about one-third less than the former rate.

But, be that as it may, we and in the contract these express provisions, which explicitly give the defendant the right at any time to prevent the plaintiffs from excavating and removing from his property any or all of the rock after he had had an opportunity of examining it for himself. Parties to written contracts must be bound by the express provisions thereof, and this rule was enforced by the court of appeals in what would, at first sight, seem a very harsh case, in Jugla v.Trouttet, 120 N.Y., 21; 30 N.Y. State Rep., 182.. There the plaintiffs, manufacturers at Paris, France, of the celebrated “D. Jugla” gloves, sold to defendant their stock of goods and the good will of their business at New York, for a fixed price, and agreed not to sell gloves of their manufacture to-any other person in the United States, and defendant agreed not. to purchase gloves of a similar grade from any other person so long as the plaintiff should continue to manufacture such gloves. Within one year thereafter the plaintiffs discontinued the manufacture of gloves and sued defendant for an unpaid balance of the-purchase price of the stock and good will, and defendant resisted payment, claiming that, as the plaintiffs had discontinued manufacturing and supplying him with these celebrated gloves, the-good will was of no practical value whatever; but his claim was of no avail, and Judge Bradley, writing, says: “There is no opportunity to spell out or imply a covenant on the part of the plaintiffs to continue in the business of manufacturing, or which denied to them the right at their pleasure to discontinue the production of gloves,” and that, “ while it is very likely that the defendant made the purchase and assumed the business with a view to and in expectation of receiving from the plaintiffs for many years the 1D. Jugla’ gloves for his trade, the provisions of the contract will not bear the construction requisite to constitute an unqualified undertaking of the plaintiffs to continue the supply to him for any definite time, or for such time as the defendant should

■ continue in business.” So in this case there is no opportunity to spell out or imply a covenant on the part of the defendant that the plaintiffs should have the exclusive right to blast and excavate all of the rock from his property whenever he should determine to have it so removed therefrom. Hence this judgment in favor of plaintiffs must be reversed, with costs, and judgment ordered for defendant, dismissing the complaint, with costs.

Fitzsimors, J., concurs.


text:
    Court of Appeals.
    Filed October 6, 1891.
    Herman C. Baskin et al., Ex’rs, App’lts, v. Washington D. Hays, Resp’t.

      John Gillette, for app’lts; M. A. Leary, for resp’t.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 962.


text:
    The People ex rel. Geo. F. Comstock, App’lt, v. The Mayor, etc., of Syracuse, Resp’t.

      Chas. H. Peck and Geo. F. Comstock, for app’lt; C. L. Stone, for resp’t.
    Order affirmed, with costs, on opinion of general term.
   All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 296.


text:
    Eugenia A. Penfield, Resp’t, v. The N. Y. & Mt. Vernon Water Co., App’lt.

      Norman A. Lawler, for resp’t; Milo J. White, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 24 N. Y. State Rep., 726.


text:
    Siragan S. Costikyan, Adm’r, Resp’t, v. The Rome, W. & O. R. R. Co., App’lt.

      Abram & Niles C. Bartholomew, for resp’t; Edmund B. Wynn, for app’lt.
   Judgment affirmed, with costs. All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 163.


text:
    The Postal Tel. Cable Co., App’lt, v. Hugh J. Grant, Sheriff, Resp’t.

      Andrew Wesley Kent, for app’lt; Chas. F, Tabor, attorney-general, for resp’t.
    Appeal dismissed, with costs. All concur, except Finch, J., absent.
   See 33 N. Y. State Rep., 997.


text:
    David D. Weaver, by Guardian, Resp’t, v. John N. Bullis, App’lt.

      Hackett & Williams, for resp’t; Daniel W. Guernsey, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 38 N. Y. State Rep., 989.


text:
    Stewart H. Pink, Resp’t, v. Wm. S. Church, Adm’r, App’lt.

      Stephen G. Guernsey, for resp’t; Allison Butts, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 38 N. Y. State Rep., 735.


text:
    Julien T. Davies, Rec’r, Resp’t, v. The N. Y. Concert Co., Limited, App'lt.

      Wm. B. Hornblower, for resp’t; Wm. H. Arnoux, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 816.


text:
    Katie Cook, Adm’rx, Resp’t, v. The N. Y. C. & H. R. R. R. Co., App’lt.

      George S. Klock, for resp’t; John D. Wandell, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 35 N. Y. State Rep., 525.


text:
    The People, Resp'ts, v. Cassius C. Corner, App’lt.

      E. F. Babcock, for resp’ts; Frederick Collin, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 107.


text:
    In the Matter of the Last Will and Testament of Ann Forbes, dec’d.

      Wm. J. Gaynor, for app’lt' Chat. J. Patter on, for resp’t.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 30 N. Y. State Rep., 35.


text:
    Jesse Billings, Resp’t, v. The Fitchburg R. R. Co., App’lt.

      Jos. D. Baucus, for resp’t; T. F. Hamilton, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 34 N. Y. State Rep., 382.


text:
    The People, Resp’ts, v. Edward J. Rice, App’lt.

      Geo. A. Benton, dist. atty., for resp’ts; John Van Voorhis, for app’lt.
    Judgment affirmed on opinion b.-low, with costs.
   All concur, except Ruger, Ch. J., not voting, and Finch, J., absent.

Affirming 35 N. Y. State Rep., 185.


text:
    Wm. D. Burrill, App’lt, v. M. Sophia Becker, Adm’rx, Resp’t.

      Waters & McLennan, for app’lt; S. J. Barrows, for resp’t.
    Judgment affirmed, wi h costs.
   All concur, except Finch, J., absent.

Affirming 36 N. Y. State Rep., 1020.


text:
    John Dobson et al., Resp’ts, v. Lucius B. Warner, App’lt.

      Deso P. Hodson, for resp’ts; C. R. Lockwood, for app’lt.
    Judgment affirmed, with costs.
   All concnr, except Finch, J., absent.

Affirming 33 N. Y. S.ate Rep., 947.


text:
    Thos. Costello, App’lt, v. Geo. B. Eddy, Resp’t.

      C. H. Slurges, for app’lt; C. S. Lester, for resp’t.
    Judgment affirmed, with costs, on opinion of Mayham, J., below.
   All concur, except Fin on, J., absent.

Affirming 34 N. Y. State Rep., 565.


text:
    Anna R. Harlow, Resp’t, v. Abner Mills, App’lt.
    Wm. Vanamee, for resp’t; A. S. Cassedy, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Finch, J., absent.

Affirming 34 N. Y. State Rep., 776.


text:
    Filed October 13, 1891.
    Julia T. Monroe, Resp’t, v. Jacob Crounse et al., Impl’d, App’lts.
    No papers.
    Appeal dismissed, with costs.
   All concur.

See 36 N. Y. State Rep., 772.


text:
    The People ex rel. Isaac P. Martin, App’lt, v. Edward Gilon et al., Assessors, Resp'ts.

      Jas. A. Peering, for app’lt; P. J. Pean, for resp’ts.
    Appeal dismissed, with costs.
   All concur.

See 37 N. Y. State Rep., 645.


text:
    The People ex rel. Anna Maria Dean, Resp’t, v. The Board of Assessors of New York, App’lt.

      Jas. A. Peering, for res’pt; P. J. Pean, for app’lt.
    Appeal dismissed, with costs.
   All concur.

See 38 N. Y. State Rep., 622.


text:
    Julia A. Hurlehy v. Godfrey R. Martine et al.

    No papers.
    Appeal dismissed, without costs.
   See 31 N. Y. State Rep., 471.


text:
    The People ex rel. Wm. E. Demarest v. John J. Gorman, Sheriff.
    No papers.
    Motion to dismiss denied, with costs.
   See 38 N. Y. State Rep., 891.


text:
    The Citizens’ Bank of Perry, N. Y., v. Helen A. Williams et al.

    No papers.
    Motion to amend remittitur denied, without costs.
   See 33 N. Y. State Rep., 834.


text:
    Filed October 20, 1891.
    The People ex rel. Chas. H. Wilson, App’lt, v. The Board of Trustees of Mt. Vernon, N. Y., Resp’t.

      Clase & Robertson, for app’lt; Norman A. Lawler, for resp’t.
    Order affirmed, with costs.
   All concur.

Affirming 36 N. Y. State Rep., 318.


text:
    In the Matter of the Application of Eliza W. Clarke, Adm’rx, etc.
    C. M. Williams, for app’lts; W. T. Dunmore. for resp’t.
    Order affirmed on opinion in general term, with costs.
   All concur.

Affirming 37 N. Y. State Rep., 428.


text:
    Mary Kiefer, Adm’rx, Resp’t, v. The Grand Trunk R’way Co., App’lt.

      J. W. Russell, for resp’t; Geo. F. Brownell, for app’lt.
    Appeal dismissed, with costs.
   All concur.

See 37 N. Y. State Rep., 306.


text:
    Jas. Powers, Adm’r, App’lt, v. The N. Y. C. & H. R. R. R. Co., Resp’t.

      Louis Marshall, for app’lt; M. M. Waters, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 38 N. Y. State Rep., 558.


text:
    Filed October 27, 1891.
    Mary Fisher, Impl’d, Resp’t, v. The Niagara Fire Ins. Co., App’lt.

      D. M. De Witt, for resp’t; F. L. Westbrook, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 34 N. Y. State Rep., 701.


text:
    Alexander M. Hunter, Resp’t, v. Clara L. Walter et al., App’lts.

      J. F. Harrison, for resp’t; Lsaac From,me, for app’lts.
    Judgment affirmed, with costs, on opinion of general term.
   All concur, except Andrews, Finch and Gray, JJ., dissenting.

Affirming 35 N. Y. State Rep., 303.


text:
    John Copcutt, Resp’t, v. The City of Yonkers et al., App’lts.

      Ralph E. Prime, for resp’t; Joseph F. Daly, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 37 N. Y. State Bep., 709.


text:
    In the Matter of the Application of The Citizens’ Water Works Co., App’lt, v. David Parry et al., Resp’ts.

      John M. Gardner, for app’lt; A. H. F. ffeeaer, for resp’ts.
    Judgment affirmed, with costs.
   All concur.

Affirming 35 N. Y. State Bep., 640.


text:
    Martin Fahy, Resp’t, v. The Rome, W. & O. R. R. Co., App’lt. Henry Purcell, for resp’t; Wm. H. Gilman, for app’lt.
    Judgment affirmed, with cos's.
   All concur.

Affirming 36 N. Y. State Rep., 67.


text:
    Albert T. Brown, App’lt, v. Sarah Teel et al., Resp’ts.

      James G. Rogers, for app’lt; Geo. B. Lawrence, for resp’ts.
    O dar affirmed and judgment absolute ordered for defendant on stipulation, wrh costs.
   All concur.

Affirming 35 N. Y. State Rep., 507.


text:
    Richard Taylor, App’lt, v. Christopher Smith, Resp’t.

      G. W. Cothran, for app’lt; Box, Horton & Bushnell, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 82 N. Y. State Rep., 843.


text:
    Fred’k W. Blossom, App’lt, v. Spencer P. Shotter, Resp’t.

      James M. Gifford, for app’lt; James Byrne, for resp’t.

      Order affirmed and judgment absolute ordered for defendant on stipulation, with costs, on opinion below.
   All concur.

Affirming 36 N. Y. State Rep., 653.


text:
    Horatio G. Seeber, App’lt, v. The American Mining & Milling Co., Resp’t.

      Thos. J. Ritch, Jr., for app’lt; Andrew Dutcher, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 33 N. Y. State Rep., 1051.


text:
    Geo. F. Comstock v. The City of Syracuse. Wm. A. Sweet v. The City of Syracuse.

      Chas. U. Beds, for motion; Chas. Ij. Stone and Wm. A. Beach, opposed.
    Motions for re-argument granted and supreme court requested to return to this court the remittiturs in these cases, and cases set down for argument on the first Tuesday of next session of the court.
   See 38 N. Y. State Rep., 1013.


text:
    Jas. MacLaurey v. A. Bloomer Hart et al.

    Ho papers.
    Motion to amend remittitur denied, with ten dollars costs.
   See 31 N. Y. State Rep., 936.


text:
    The People ex rel. Jas. Brown v. Jas. C. Duane et al.

    Ho papers.
    Motion to dismiss denied on ground that notice was not sufficient, without costs.
   See 37 N. Y. State Rep., 691.


text:
    In the Matter of the Will of J. Gall.
    No papers.
    Motion to dismiss denied, with ton dollars costs.
   See 36 N. Y. State Rep., 1018.


text:
    Filed October 30, 1891.
    Harmon C. Schultz, Resp’t, v. Geo. W. Mead, App’lt.

      Jas. & Thos. H. Troy, for resp’t.
    Judgment affirmed, with costs.
   All concur.

Affirming 29 H. Y. State Rep., 203.


text:
    Geo. Munro, App’lt, v. Ormond G. Smith et al., Resp’ts.

      Roger Foster, for app’lt; Archibald, L. Sessions, for resp’ts.
    Judgment affirmed, with costs.
   All concur.

Affirming 36 N. Y. State Rep., 841.


text:
    Philip W. Germann, Resp’t, v. The Suburban Rapid Transit Co., App’lt.

      Leopold, Leo, for resp’t; James R. Marvin, for app’lt.
    Judgment affirmed, with costs.
   All concur, except Earl, J., absent.

Affirming 37 N. Y. State Rep., 300.


text:
    Mary Lynch, Resp’t, v. The Third Ave. R. R. Co., App’lt.

      Henry W. Bates, for resp’t; Wm. JJ. Cohen, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 36 N. Y. State Rep., 431.


text:
    Morris A. Brokman, Resp’t, v. Lewis Myers, App’lt.

      B. F. Einstein, for resp’t; Otto Honoitz, for app’lt.
    Judgment affirmed, with costs.
   All concur.

Affirming 36 N. Y. State Rep., 650.


text:
    Bernhard Metz, Resp’t, v. Edward Luckemeyer et al., App’lts.

      Otto Horwitz, for resp’t; Chas. Wehle, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 36 N. Y. State Rep., 85


text:
    Gustav Schnaier et al., Resp’ts, v. Konrad Schmidt et al., App’lts.

      Abram Klina, for resp’ts; J. George Flammer, for app’lts.
    Judgment affirmed, with costs.
   All concur.

Affirming 37 N. Y. State Rep., 638.


text:
    The Same v. The Same.
    Order affirmed, with costs.
   All concur.

Affirming 37 N. Y. State Rep., 641.


text:
    Second Division.
    Filed October 6, 1891.
    Henry Gallagher, Resp’t, v. The Grand Trunk R’way Co. of Canada, App'lt.

      Martin W. Cooke, for resp’t; E. C. Sprague, for app’lt.
    Judgment affirmed, with costs, on opinion of Bradley, J., in Jennings v. Grand Trunk Ji. Co., 40 N. Y. State Rep., 318.
   All concur; Follett, Oh. J., in result.

Affirming 33 H. Y. State Rep., 31.


text:
    In the Matter of the Application of Hubert O. Thompson, Com’r of Public Works (Hodgman’s Appeal).

      James R. Cuming, for app’lt; Arthur H. Masten, for resp’t.
    Order affirmed, with costs.
   All concur.

Affirming 14 N. Y. State Rep., 633.