author: Van Wyck, J.

text:
    William McShane, Pl’ff, v. Charles H. Pinkham, Def’t.

      (City Court of New York, Special Term,

      Filed June 15, 1892.)

    Bail—Moneys deposited by third person in lietj op, not subject to DEBTS OP DEPENDANT.
    Moneys deposited by third persons in lieu of bail for a defendant in a criminal action do not become the property of such defendant for the purpose of paying and satisfying his obligations in civil actions entirely disconnected from the criminal action and the subject matter thereof.
    Motion for order directing the city chamberlain to satisfy execution out of moneys deposited with him in lieu of bail for defendant in a criminal action.

      Goodhart & Phillips, for pl’ff; Platt & Bowers, for the chamberlain; Taylor, Thompson & Kaufman, for the banks.
   Van Wyck, J.

The plaintiff recovered judgment against defendant for $791, in January last, and issued execution which was returned wholly unsatisfied, whereupon he obtained a third party order against the city chamberlain of New York, and the examination had thereunder disclosed that “ on May 9, 1892, there was paid to the chamberlain in cash, in the case of The People v. Charles H. Pinkham, the sum of $6,500 in lieu of bail bond for said defendant, pursuant to an order of the general sessions made by Recorder Smyth, and dated May 9, 1892,” and that the same is still so held by him. Upon the evidence, and this evidence alone, plaintiff, the judgment creditor, now moves under § 2446 of the Code for an order directing the chamberlain to pay out of the money so held by him such amount as will satisfy the execution. The recorder’s order of May 9th provides that Charles H. Pinkham be admitted to bail in the sum of $6,500, with surety in like amount, or instead thereof he may deposit said sum of money with city chamberlain, and Pinkham, on the same day in a written stipulation which recited that “ having this day caused to be deposited the sum of $6,500,” agreed to abide the above order, etc. The deputy chamberlain deposes that said $6,500 was paid into his office by the Fourth National Bank and the Central National Bank, in lieu of a bail bond for that amount, to secure the appearance of said Pinkham. It appears that at the time of the deposit the chamberlain executed and delivered to these two banks acknowledgments, of which the following is a copy: “Chamberlain’s office, New York, May 9, 1892. The People, etc., v. Charles H. Pinkham. Whereas, heretofore and on the 9th day of May, 1892, an order was made by Recorder Smyth, admitting the above named defendant .to bail on giving an undertaking in the sum of $6,500 on an indictment for grand larceny. This is to certify that the Fourth National Bank, for the defendant above named, has deposited with the chamberlain of the city of New York, this day, the amount of $5,000 on account of the sum mentioned in said order, as security for said defendant’s appearance, pursuant to such order, instead of said undertaking of bail, pursuant to § -586 of the Code of Criminal Procedure.”

The other bank received a similar receipt. And the defendant Pinkham de¡ioses, that he has not, nor has he ever had any interest in such money, but that same was so deposited by these two banks. The contention of plaintiff’s counsel is, that, irrespective of this proof, this $6,500 became the property of the defendant the moment it was so deposited, and he relies upon two causes which he cites, and upon the language of sections of the Code of Criminal Procedure, which provide for such deposits money in lieu of the bail bond, namely, §§ 586, 592, Code of Criminal Procedure. The case of Eagan v. Stevens, 39 Hun, 311, really has no bearing upon the subject, for there the recorder of Cohoes, before whom a person was brought upon a criminal charge, admitted.him to bail in $200, and instead of giving the requisite bail he deposited with the recorder $200 in cash in lieu thereof. This deposit was not made with the county treasurer as provided in § 586, Code of Criminal Procedure, and hence the court held that “ The recorder, in accepting the deposit of money, instead of taking bail, acted officially, or attempted to so act, without authority of law, hence his action was void in law, and the money remained the property of McClellan, the depositor, in his hands.” And this ruling was under the express provisions of a statute which provides that “ No sheriff or other officer shall take any bond, obligation or security by color of his office in any other case or manner than such as are provided by law, and any such bond, obligation or security taken otherwise than as herein directed shall be void.”. 3 R. S., 7th ed., 2374, § 59. The recorder of Cohoes was not authorized to take the deposit, but only the county treasurer. The other authority cited by plaintiff is People ex rel, Gilbert v. Laidlaw, City Chamberlain, 102 N. Y., 588; 2 St. Rep., 537. In that case the deposit was made by a third party, the plaintiff therein, to whom the chamberlain executed and delivered an acknowledgment or receipt exactly similar to those given to the two banks in the case at bar. This deposit was made by Hilbert, the plaintiff, in lieu of a bail bond of $300 for the appearance of one Nye, who a few days thereafter was tried, convicted and sentenced to pay a fine of $250, and the fine was ordered to be paid from the money so deposited.

Then Hilbert applied for alternative mandamus, addressed to City Chamberlain Laidlaw, commanding him, to return him the $300, or show cause, but the trial judge decided that he was not entitled to the writ of mandamus, and gave judgment against him for costs. Upon appeal, the general term reversed this judgment, and it, in return, was reversed by the court of appeals, which merely held that the deposit was, for the purposes of the criminal action, to be considered as the money of the defendant, and although it was in fact furnished by a third person, it may be applied in payment of any fine imposed upon the defendant in the criminal action. This case goes no farther than so ruling, and such ruling was justified by the express language of § 589 of the Code of Criminal Procedure, which is one of the several sections applicable to bail and money deposits in lieu thereof in criminal actions, and reads as follows: “ When money has been deposited, if it remain on deposit and unforfeited at the time of a judgment for the payment of a fine, the county treasurer must, under direction of the court, apply the money in satisfaction thereof.”

These conditions then existed in that case, for the defendant in the criminal action had been convicted and a judgment for the payment out of such deposit of a fine of $250 had been awarded against him, and the money still remained on deposit with the county treasurer, the city chamberlain of New York: But that

case does not hold, nor has any authority been cited or found which holds that cash so deposited by a third person in lieu of bail for a defendant in a criminal action becomes the property of such defendant for the purpose of paying and satisfying his obligations in civil actions entirely disconnected from the criminal action and the subject matter thereof. The establishing of such a rule of liability in reference to these deposits of cash by third persons, in lieu of bail for accused persons, should not be sanctioned except by express provision of statute, and no such statute law has been brought to the attention of the court, either from investigation or by reference of counsel.

This motion to direct the city chamberlain to pay over to the sheriff part of the money so deposited with him is denied, with ten dollars costs, but as counsel for the two banks, the defendant, the city chamberlain and the plaintiff, each requested that a stay be granted in case of an adverse decision, such stay will be granted, provided an appeal is duly taken and argued at the September general term.


source: Caselaw Access Project

license: Public Domain

text:
    Clarence M. Kemp, Pl’ff, v. The Union Gas & Oil Stove Co., Def’t.

      (City Court of New York, Special Term,

      Filed June 27, 1892.)

    Costs—Jurisdiction op Justice’s Court.
    In determining, upon the question of costs, whether the case was one of which a justice’s court had jurisdiction, the amount claimed is not the criterion, but the amount proved to the satisfaction of the court or referee.
    Motions by both parties for an extra allowance of costs.

      Sidney J. Cowen, for pl'ff; Hatch & Warren, for def’t.
   Van Wyck, J.

The alleged cause of action was a money demand on contract for $374, and the answer was a general denial and an alleged counterclaim for $700. The referee finds as matter of fact that plaintiff has only proved $41.14 of his claim, and that defendant has not proved any part of his counterclaim, and as conclusion of law that plaintiff is entitled to recover of defendant such sum of $41.14. See referee's report filed June 21, 1892. It is conceded that the party entitled to costs should be granted an extra allowance, and the referee so certifies, and both parties no.w move for such allowance. The plaintiff’s recovery being for less than $50, he is not entitled to costs, Code, § 3228, and the defendant is, § 3229, unless this action belongs to a class of which courts of justices of the peace have not jurisdiction. Section 2863 of the Code, sub. 4, specifies as one of such class: “ Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds $400.” Whether such was the fact in this case must be determined by the facts found by the referee, as his finding is conclusive upon the parties for this purpose. Fuller v. Conde, 47 N. Y., 89. And it is incumbent on the plaintiff to show that a justice’s court had not jurisdiction of the case. That is not done by proof that the sum total of the accounts claimed by both parties exceeded $400, for § 2863 of the Code has made the jurisdiction dependent upon the sum total of such accounts proved to the satisfaction of the justice, which means in this case to the satisfaction of the referee, who, however, finds that plaintiff has proved only $41.14 of his claim, and that defendant has failed to prove any part of his counterclaim, and hence it appears that the sum total of the accounts of both parties, as proved to the satisfaction of the referee, amount to only the sum of $41.14. The plaintiff’s recovery was not reduced to this amount by reason of any allowance of defendant’s counterclaim, or any part thereof, for the same was disallowed in toto by the referee. The plaintiff’s account, as proved, was only $41.14, and the defendant’s was nothing.

It follows that the sum total of the accounts of both did not exceed $400, and hence that a justice’s court had jurisdiction of the action, and as plaintiff’s recovery was less than fifty dollars, that the defendant is entitled to costs. Tomkins v. Greene, 21 Hun, 257, affirmed in 82 N. Y., 619, on the opinion of the court below. The counsel for plaintiff relies on the case of Sherry v. Cary, 111 N. Y., 514; 19 St. Rep., 608, as an authority in support of his contention that plaintiff is entitled to costs, and, hence, should be granted an extra allowance, but in that case there was the specific 'finding that plaintiff had proved his claim of $657.85, and defendant his counterclaim for $634.26, and that plaintiff therefore was entitled to recover the balance of $23.59. Hence, in that case the sum total of the accounts of both parties, as proved, certainly-exceeded $400, for plaintiff’s recovery was reduced to $23.59 by reason of the allowance of defendant’s counterclaim, as proved, of $634.26, and so that case was not within the jurisdiction of a justice’s court, and the plaintiff was entitled to costs although his recovery was for less than fifty dollars. But it is different in this case, for, as already stated, the sum total of the accounts of both parties, as found by the referee, amounted to only’$41.14, and the case was, therefore, within the jurisdiction of a justice’s court and the defendant is entitled to costs. Defendant’s motion for an extra allowance granted, and plaintiff’s similar motion is denied.


author: Dwight, P. J.

text:
    The People, Resp’ts, v. Thomas Mc Keon, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Rape—Evidence sufficient to corroborate complainant.
    Testimony of witnesses that defendant was seen going to and away from the house of complainant, where she was alone, at about the time when she testifies the crime was committed and by one witness that complainant immediately afterwards made complaint accompanied by appearance of distress corresponding with her story, is sufficient corroboration of complainant’s testimony to warrant the submission of the case to the jury.
    2. Same—Evidence.
    On the trial of an indictment for .rape, the People were allowed, under objection, to give evidence of an attempt by defendant to escape from the jail where he was awaiting trial. It was conceded that he was also held under an indictment charging another crime, but what it was was not stated. Mid, that such evidence was incompetent, as the motive for escape may have been furnished by fear of prosecution for the other crime.
    Appeal from a judgment of the court of sessions of Cayuga county, convicting the defendant of the crime of rape, and from an order denying the defendant’s motion in arrest of judgment and for a new trial, on the minutes of the court.

      H. Greenfield, for app’lt; A. P. Rick, for resp’ts.
   Dwight, P. J.

The defendant was convicted mainly, as was natural, on the testimony of the woman who was alleged to have been the subject of the crime. The supporting testimony was slight, but, we think, sufficient to warrant its submission to the jury. It consisted, for the main part, of testimony by other witnesses that the defendant was seen going to and away from the house of the complainant, where she was alone, at about the time when, as she testifies, the crime was committed, and, by one witness of immediate complaint on the part of the complainant, accompanied by an appearance of tears and distress corresponding with her story of the wrong to which she had been subjected.. We do not dwell upon this branch of the case, because there is one exception in the record which we think must be fatal to the judgment.

The People were permitted, under the objection of the defendant, to give evidence of an attempt on his part to escape from the jail where he was confined awaiting trial; while it was conceded by the district attorney that he was at the same time held on a bench warrant issued on an indictment charging him with another crime; what crime is not stated. We think it was error under these circumstances to admit the tsetimony objected to. Such evidence is not of a very direct or persuasive character at the best. It has been held competent as tending to show consciousness of guilt. People v. Petmecky, 2 N. Y. Crim., 451. But where the defendant is held under two distinct charges, how can the fact of an attempt to escape be said to raise any presumption of guilt of either of the crimes charged rather than of the other? It is plain that the motive to escape may have been furnished wholly by his fear of prosecution for the other crime with which he was charged, and, thus, the act proved have been entirely consistent with consciousness of innocence of the crime in question. Such being' the case, the evidence was clearly incompetent, and yet it may have'been decidedly prejudicial to the defendant.

The rule as to the effect of the admission of incompetent evidence is well stated by Allen, J., in the case of Coleman v. The People, 58 N. Y., 555. He says: “It seems that on a criminal trial, especially 'where incompetent evidence is received against the accused, the judgment will be reversed, unless the error is shown conclusively to be innoxious. It is not enough that the court sitting in review are of the opinion that the result may, and probably would, have been the same had the objectionable evidence been excluded:”

There were other exceptions in the case which might merit attention, but as none of the questions raised by them is likely to arise on another trial, they need not be examined here. For the error specified, the judgment should be reversed, and a new trial granted.

Judgment and conviction of the court of sessions of Cayuga county reversed, and a new trial granted.

Macomber and Lewis, JJ., concur.


text:
    The Walter A. Wood Mowing & Reaping Machine Co., App’lt, v. Robert H. Pearson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Evidence—Declarations op agent.
    Evidence of declarations of an agent, made to a third party as to the nature of a past transaction, is inadmissible as against his principal. The fullest authority to an agent to contract confers no power to bind the principal by subsequent declarations as to what the contract was.
    Appeal by the plaintiff from a judgment entered in Niagara county on the report of a referee.

      D. Miller, for app’lt; D. E Brong, for resp’t.
   Dwight, P. J.

The action was to recover a balance of account alleged to be due from the defendant for machines, twine and “ extras ” furnished to him by the plaintiff, to be sold. The principal question of fact in the case was whether the twine and extras embraced in the account were furnished to the defendant and on his credit, or to one Pomroy, who was his partner in general business, but, as the defendant contended, dealt with the plaintiff’s twine and extras on his own individual account, as the defendant himself did with the plaintiff’s machines. The referee, as appears by his opinion, found the evidence extremely conflicting and, indeed, so far balanced that he puts his decision in favor of the defendant, not upon the ground that the defense was established by a preponderance of evidence, but solely upon the ground that there was not a preponderance of evidence in favor of the plaintiff’s cause of action. In a case so nicely balanced, it is more than, usually important to inquire whether any evidence was received in behalf of the defendant to which he was not entitled. In this case a manifest error was committed in that direction, which must, we think, be fatal to the judgment. Testimony was received, under the plaintiff’s objection, of a declaration said to have been made by one Mandeville, the contracting agent of the plaintiff, to a third person, the effect of which was, distinctly, to charge Pomroy and discharge the defendant from the liability in question. Of course the declaration was incompetent evidence; it was no part of res gestae ; it was made to a third person in respect to past transactions. The fullest authority to an agent to contract confers no power to bind the principal by subsequent declarations as to what the contract was. There is no attempt here to justify the ruling, but the suggestion is made that the error was cured, or the exception waived, by the plaintiff’s subsequently putting in evidence, without objection, Mandeville’s version of the same conversation which was to the contrary effect. We do not see upon what principle it can be claimed that the error was thereby cured. Its effect remained; the referee adopted the theory of the case which was supported by the testimony objected to, and, it may be assumed, gave credit to it. Possibly, had that testimony been absent, the nicely balanced scales might have turned in favor of the plaintiff. The admission of incompetent evidence is ground for a new trial, unless it plainly appears that it cannot have affected the result.

For the error considered, the judgment should be reversed, and a new trial granted.

Judgment reversed and a new trial granted, with costs to abide the event.

Macomber and Lewis, JJ., concur.


text:
    The People ex rel. Willard Pulman v. Charles K. Henion et al., Water Commissioners.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Drainage—Laws 1807, chap. 372—Constitutional law.
    Chapter 372, Laws 1867, in relation to the drainage of swamp lands in Seneca county, is unconstitutional and void for the reasons that it authorizes the taking of private property for a private use, and that it gives no opportunity for hearing to those who are assessed thereunder, and hence it gives no jurisdiction to the water commissioners created under chapter 557, Laws 1890, over the ditches constructed under the former act, and their refusal to repair the same was proper.
    Certiorari to review the determination of the defendants denying the application of the relator and others for the repair of certain ditches in the towns of Waterloo, Junius, Seneca Falls and Tyre, in the county of Seneca.

      G. E. Zartman, for relator; C. A. Hawley, for def’ts.
   Dwight, P. J.

The four defendants were, respectively, the supervisors and, ex officio, the “ water commissioners ” of the four towns mentioned in the proceeding. The latter office was created by chapter 557 of the Laws of 1890 (§ 25), and the proceedings here reviewed were taken in attempted compliance with the provisions of that act. Those proceedings were to procure the repair of certain ditches which had been constructed more than twenty years before under the provisions of a special act of the legislature relating to the four towns mentioned therein. That act-was chapter 372 of the Laws of 1867. It was entitled “An act to provide for draining certain swamp lands, situated in the towns of Waterloo, Junius, Seneca Falls and Tyre, in the county of Seneca.” It appointed three persons (named) commissioners for' the purposes of the act (Sec. 1.).

It made it the duty of such commissioners to cause a survey and map of the swamp and adjacent wet lands to be drained, and of the tracts of land to be benefited by such drainage, (sec. 2); to estimate the cost of doing the work, and to assess and apportion the same (with their fees, and those of the surveyor, and other expenses) upon the owners of the lands to be benefited in proportion to the benefit which in the judgment of the commissioners the owners should derive from the work contemplated, (sec. 3); to make and subscribe a statement of the assessments so made containing the names of the persons and a description of the lands assessed, and the amount of each assessment, and file such map and statement in the clerk’s office of the county; and it is provided that the assessments SO' made should be a lien upon the lands upon which they were respectively assessed, (sec. 4). It required the commissioners: upon the completion of such assessments to cause a notice containing an abstract thereof, and the names of the persons-assessed, to be published in two newspapers, appointing a time and place at which they, or one of them, would attend to receive such assessments, and that unless such assessments should be paid at the time and place so appointed, they would then and there proceed to sell the lands in respect to which such assessments were made, at public vendue, to the highest bidder (sec. 5). • It provided for a service of the notice above described upon the respective owners of the lands assessed personally, or by leaving at his place of residence fourteen days, or by mail twenty-eight days, before such day of sale (sec. 6). It also made it the duty of the commissioners, or one of them, to attend at' the time and place specified in the notice, to receive payment of the assessments, and to proceed then and there to sell any of the lands so assessed upon which the assessments were not then, and there paid (sec. 7).

By § 13 of the act the commissioners were empowered “ to enter upon any lands in or about said swamp, or the Black Brook outlet of said swamp, for the purposes contemplated by this act; ” that is, to construct, maintain and repair ditches thereon; and by § 15 it was provided that “ any person who shall dam up, obstruct, or in any way impair any ditch, drain or sluice-way, made and opened in pursuance of this act, * * * shall be liable to pay the persons owning or possessing any of said land, so as aforesaid assessed for said work herein provided for, double the damages that shall be assessed by the jury for such injury.”

It was upon this extraordinary statute that the proceedings here under review were, finally, based. Because, though, as we have said, the method of procedure was that prescribed by the act of 1890, the reference in that act under which jurisdiction of this proceeding is claimed for the supervisors, commissioners, is to the special act of 1867. It is found in the first of the sections added by the act of 1890 to the act of 1867, which, in turn, amended the provisions of the lievised Statutes relating to the drainage of swamp lands. That section read as follows: “ Section 25. The supervisor of each town in the state shall be the water commissioner of his town, and as such shall have charge and" supervision of all the ditches and channels for the passage of water which have been or shall hereafter be constructed or improved for the purpose of draining any swamp, bog, meadow or oilier low and wet land in said town pursuant to said act hereby amended, or any special act of the legislature therefor.” And subsequent sections of the act of 1890 confer upon the commissioner, thus created, jurisdiction of proceedings for the repairs of “ any such ditch or channel,” only; that is, of any ditch or channel constructed under the act of 1867, or any special act of the legislature therefor.

As we have seen, the ditches in question in this proceeding were constructed under the supposed authority, only, of the special act of 1867. If, therefore, that act was for any reason invalid and void, the ditches in question arc not brought within the category of the structures mentioned in the act of 1890, and- the "commissioners thereby created have no jurisdiction of the proceedings for their repair.

It seems very plain that the act of 1867, above abstracted, was, and is void, as being in violation of two fundamental principles of law, one of which is clearly implied, and the other expressly formulated in the constitution of this state. The first is the principle that private property cannot be taken for private use without the consent of the owner; the second, that no person shall be deprived of life, liberty or property without due process of law.

The first of these principles is very fully discussed and illustrated by Judge Charles Mason in the case of White v. White, 5 Barb., 474. In his opinion he quotes the language of Judge Story in Wilkinson v. Leland, 2 Peters, 657, substantially to the effect that this'principle is a fundamental maxim of free government, resting in first principles and not dependent upon express constitutional inhibition. He observes that ah exception to the rule has been made, by express provision of the latest constitution of this state, in favor of private roads, when the necessity therefor and the amount of damages caused thereby shall have been first determined by a jury of freeholders, Const, art. 1, § 7, but lie says the framers of this constitution “ have not extended the right to take private property for private use beyond the case of opening private roads, and, from the very fact that they have not, 1 think the inference is irresistible that they did not intend it should be.”

"That the act of 1867 does violence to this principle seems very apparent from the abstract given above. Sections 13 and 15 of the act, supra, plainly authorize the taking of private property, viz.: the lands which the ditches are to without the consent of the owner ; and that not only without the pretence of a public use, but, expressly, for the benefit of those other persons whose lands are to be improved by the work to be done. There is in the entire act no allusion to the subject of the public health nor to any other public purpose, but there is, on the other hand, constant reference to the owners of the lands drained as the persons to be benefited thereby. It was for want of any reference to a public use that the constitutionality of the provisions of the Revised Statutes relating to the same subject was questioned previous to 1867; and it was, no doubt, that defect which led to the amendment of that year. White v. White, supra, at page 483; see also In re Draining Swamps, 5 Hun, 116; In re Ryers, 72 N. Y., 1.

Equally clear is it, we think, that the act of 1867 does violence to the express provision of the constitution that no person shall be deprived of property without due process of law. Const., art. 1, § 6. The provisions of the act which are repugnant to this provision of the constitution are found in §§ 2 to 7 inclusive, and are those which provide for assessing, creating a lien upon and selling “ at public vendue,” the lands found by the commissioners likely to be improved by the drainage proposed, without any opportuntity being given to the owners of the lands to object to the assessments made, either on the ground that the lands will not be benefited, or that the assessments are unequal and unjust. The provisions of the act in question in this respect are very extraordinary. It provides no grievance day whatever. The notice to the owners of lands assessed is not of a day when the assessment will be reviewed, but of the day upon which it must be paid, or the land will be sold “ then and there; ” and this is the first intimation the owner has had of any proceeding which threatens his right of property.

It is well settled that a “ grievance day,” an opportunity to be heard in respect to the justice and correctness of a proposed assessment, is a necessary part of the due process of law for the levying of assessments on property in this state for any purpose. Stuart v. Palmer, 74 N. Y., 183. 188; Remsen v. Wheeler, 105 id., 573; 8 St. Rep., 202; McLaughlin v. Miller, 124 N. Y., 510; 36 St. Rep., 690; In the Matter of Union College, 41 St. Rep., 640. In the first of the cases cited the rule is distinctly declared that “ a law imposing an assessment for a local improvement, without notice to and a hearing, or an opportunity to be heard on the part of the owner of the property to be assessed, has the effect to deprive him of his property without due process of law, and is unconstitutional,” and the doctrine is upheld in all the other cases.

In the two respects considered, therefore, the act of 1867 was clearly unconstitutional and void." Being so, it afforded no basis for the jurisdiction sought to be conferred upon the commissioners created by the act of 1890 over the ditches constructed under the former act. Those commissioners were, therefore, without jurisdiction of the proceeding here under review; all their acts in entertaining such proceeding were void, their refusal to make the order and determination asked for by the relator was clearly correct, and the ruling must now be sustained even though the objection to the jurisdiction was not taken during the proceeding, but for the first time on the review. Burk v. Ayers, 19 Hun, 24.

The determination of the commissioners should be confirmed.

So ordered, with costs to the defendants.

Macomber and Lewis, JJ., concur.


text:
    The Empire State Insurance Co., Pl’ff, v. The American Central Insurance Co., Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Insurance (Fire)—Contract op re-insurance.
    Plaintiffs agents having issued a policy for $2,500, plaintiff, through its special agent,, directed them to reduce il to $1,000, by cancellation or reinsurance. Said agents were also agents of defendant, and by an entry in their books “ bound the risk” to the amount of $1,500 in the defendant company, hut did not notify it until after a loss. Held, that as they were the agents of both parties, and acted as such in a transaction requiring the exercise of judgment and discretion in behalf of both, the contract of reinsurance was thereby rendered invalid, and no action could be maintained thereon.
    Motion by the plaintiff for a new trial on a case and exceptions ■ordered to be heard in the first instance at general term, after a verdict for the defendant, by direction of the court, at the Monroe circuit.

      D. Hays, for the motion; I. N. Ames, opposed.
   Dwight, P. J.

The action was on an alleged contract of the defendant to re-insure, in part, a risk held by the plaintiff; a contract in all respects valid and binding except for the fact that the agents of the defendant, who assumed to hind the defendant thereby, were at the same time the agents of the plaintiff, and acted for the plaintiff in the same transaction. On elementary principles and controlling authority, this statement must have the effect to defeat the plaintiff’s action.

It is unnecessary since the opinions of Allen, J., in Utica Ins. Co., v. Toledo Ins. Co., 17 Barb., 132, and of Denio, J., in the N. Y. Central Ins. Co. v. The National Protection Ins. Co., 14 N. Y., 85, to rehearse the argument in favor of the application to precisely this class of cases of the general proposition that “aperson cannot act as the agent of both parties in the making of a contract, where he is invested with a discretion by each, and when each is entitled to the benefit of his skill and judgment.”

In order to maintain this action it was necessary to show it distinguished, by its facts, in some material respect, from the cases mentioned. We are unable to see that it is so distinguished. On the 7th of August, 1889, Straub & Morris, who were then the duly constituted agents of the plaintiff at Pittsburg, Pa., issued a policy of insurance for $2,500 in the plaintiff’s company, to the Bulge way Lumber Company, on a quantity of lumber at Ridgeway, Pa., and duly reported the transaction to the plaintiff, at Rochester, N. Y. Whereupon the plaintiff, Iw its secretary and through its special agent residing at Pittsburg, directed Straub & Morris to reduce the insurance on the lumber, either by cancellation or by re-insurance, to $1,000; and thereafter, on the 21st of September, Straub & Morris, who had, since the issuance of the original policy, become the agents of the defendant’s company, by an entry in their books “ bound the risk ” to the extent of $1,500 in the latter company. The re-insurance policy was not in fact issued until after the occurrence of the loss, in October of the. same year, and the defendant was not notified, in any manner, that the risk had been assumed in its name until after that time. Neither of these facts is material upon the question of the binding character of the contract of re-insurance, in the first instance, but the latter of them is material upon the question whether there was any ratification of that contract by the defendant; and in view of that fact there seems to be no evidence in the case upon which a ratification could have been found.

The case in its essential facts seems to be strictly within the rule of the cases above cited. Straub & Morris were concededly the agents of both parties, and acted as such in a transaction requiring the exercise of judgment and discretion in behalf of both. They had issued the original policy to the Ridgeway Company for $2,500, and were immediately directed by the plaintiff to reduce the insurance to $1,000, either by cancellation or by reinsurance, presumably for the reason that in the judgment of the managers of the plaintiff the latter sum was all the insurance the risk would warrant The agents were therefore called upon to exercise their judgment and discretion in behalf of the plaintiff as to whether the required reduction would be effected by cancellation or by re-insurance, and if by the latter, then in behalf of the defendant as to what portion of the risk could be safely assumed by the latter; and they exercised that discretion by laying upon the defendant three-fifths of the entire risk, of which the plaintiff was willing to bear only two-fifths. The interests of the two parties to the contract were directly adverse; to the extent that it was favorable to the one, it was unfavorable to the other; and the case was precisely one' of those in which a common agent could not give the benefit of an undivided fidelity and devotion to the interests of both.

We are unable to see any justness in the proposition that the contract in question was in fact made between several agents of the two parties, viz., by Aull, the special agent, on the part of the plaintiff, and by Straub & Morris for the defendant alone. Aull seems to us to have been the mere mouth piece of the plaintiff to communicate to the agents, Straub & Morris, the direction of the plaintiff to reduce the risk taken by them for the plaintiff. Aull did not apply to Straub & Morris for re-insurance of the plaintiff in some other company represented by them, but only communicated to them the plaintiff’s direction to reduce the risk, and, necessarily, to act as the agent of the plaintiff in so doing.

We think the case is fully covered, in principle, by the cases referred to, and the authorities upon which the decision of those cases was based.

The motion for a new trial should be denied, and judgment ordered for the defendant on the verdict

Macomber and Lewis, JJ., concur.


text:
    Thomas Koser, App’lt, v. August Sommer, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Contract—Verdict in justice’s court.
    In an action in justice’s couit to recover for potatoes sold and delivered tlie defendant claimed that there was a failure to perform an entire contract to sell and deliver a larger quantity. The evidence, which was confined to the testimony of the parties, was conflicting as to whether the contract was for the sale and delivery of not less than 300 bushels, or of the quantity which plaintiff had on hand, supposed to he that amount, but which proved only to he the amount actually delivered. Held, that the question was peculiarly one for the jury, and that their verdict should not have been disturbed on appeal.
    Appeal by the plaintiff from a judgment of the county court of Monroe county, reversing the judgment of a justice’s court, entered on the verdict of a jury.

      T. S. Dean, for appl’t; N. Bull, for resp’t.
   Dwight, P. J.

The action was to recover the balance of the agreed price of 142 bushels of potatoes sold and delivered by the plaintiff to the defendant. The answer was a general denial merely.' The defense sought to be established was failure to perform an entire contract to sell and deliver 200 bushels or more. It is plain that this defense was not, strictly, available to the defendant under his answer, but assuming that the variance was one which might be disregarded under the liberal rule prescribed for justice’s courts, Code of Civ. Pro., § 2943, yet there arose, upon the evidence, a distinct issue of fact whether the contract was for the sale and delivery of not less than 200 bushels, or of the quantity of potatoes which the plaintiff had on hand, supposed to be about 200 bushels, but which, upon sorting, proved to be only 142 bushels, the quantity actually delivered. The evidence was confined to the testimony of the plaintiff on the one hand and the defendant on the other. The question was peculiarly one for the jury, and it must be presumed, in support of their verdict, that they found on that question in accordance with the testimony of the plaintiff, and we are quite disposed to believe that that finding was in accordance with the truth of the case. Certainly it was supported by evidence which the jury had a right to believe, and we think it should not have been disturbed on appeal.

The judgment of the county court should be reversed, and that of the justice affirmed.

Judgment .of the county court of Monroe county appealed from reversed, and that of the justice affirmed, with costs to the plaintiff in this court and in the county court.

Macomber and Lewis, JJ., concur.


author: Hatch, J. White, J.

text:
    Laura Wooden, Adm’rx, Pl’ff, v. The Western New York & Pennsylvania Railroad Co., Def’t.

      (Superior Court of Buffalo, General Term,

      Filed May 3, 1892.)

    1. Master and servant—Railroad—Delegation or authority.
    Where the determination of the question whether a train of a certain size and character can he safely run down a mountain grade by gravity is left to the conductor, his decision in relation thereto is that of the master, and not of a fellow servant of a brakeman upon the train who is injured by an accident resulting therefrom.
    2. Same—Negligence.
    After the accident it was found that some of the brake-shoes had oil upon them. Held, that this was a defect as to which the brakeman did not assume the risk, and that the defendant could be held liable for not furnishing reasonably safe and proper appliances.
    3. Same—Rules—Promulgation.
    It appeared that the rule in relation to taking trains over the mountain was not in the book of rules, but was posted on the bulletin boards. The evidence tenc.ed to show that such notices so posted are sometimes torn down. Deceased had been in defendant’s employ three and a h^lf months. Held, that in the absence of proof that it was upon the bulletin board during the time of his employment, it could not be taken as a conclusive fact that he had notice of and knew of such rule.
    (White, J., dissents)
    Motion for a re-argument upon plaintiff’s motion for a new trial.

      John G. Milburn, for the motion; Harlow C. Curtis, opposed.

       See 43 St. Rep., 218.

   Hatch, J.

I am not prepared to give assent to the conclusion reached by my associate upon this motion, that the court, in sustaining the plaintiff’s exceptions, assumed a rule of law in conflict with established authority regulating the relation and liability between master and servant and of servants to each other. On the contrary, I think the rule of law announced by Judge Beck-with, in deciding this case, as applicable to the facts disclosed by the record in relation to these questions, expresses the correct rule of law. It is much more difficult to find evidence connecting the cause of the accident with the negligence of the defendant; however, the conclusion is reached that this may be done. It appears from every witness who spoke upon the subject that upon this night there was a heavy frost, that this produced a bad slippery rail; that it was much more difficult to set brakes under such conditions than if the rail had been dry, by reason of which the holding power of the brake was perceptibly reduced. It is also in evidence that oil was found upon the brake-shoes, which would materially lessen the friction and grip of the brake. A greased brake-shoe, it is not strained to say, constitutes a defect in the brake, for there can be .no difference between a brake-shoe rendered-wholly or partially useless by grease, and one which from a defective chain or other cause prevents it coming firmly against the wheel. The object sought is to create friction and resist the motion of the wheel, and whatever lessens its power in this respect to the extent it is lessened creates a defect. An examination of the cars not broken up, made after the accident, showed the brakes 'upon them set; the conductor had given to the brakemen all necessary instructions and saw that they were properly carried out. For he states that he knew the brakes were set, as they left the top of the grade, “ by the way the train tipped over the hill ” and also from seeing the lights moving upon the cars when he found the train was running too fast and went upon the top to make an observation and set the brakes. From this testimony the jury would have the right to draw the inference that the brakemen were promptly and properly performing the duties devolving upon them so far as in their power.

It is further insisted that the court overlooked the question that deceased by continuing in defendant’s employ, with knowledge of defendant’s method of operating its trains over Keating mountain, as provided by its rules and orders, assumed the risk attendant thereon. If the greased brakes are to be considered as a defect in the brake, and I think they may be, it is quite clear as to that he took no risk and defendant could be held liable in not complying with the rule which requires the furnishing of reasonably safe and proper appliances, if such defect be connected with the cause of the accident. But it is not clear that defendant’s claim can be upheld as matter of fact. The conductor was the sole judge as to whether the train, under the circumstances, could be safely taken down the mountain. The order to leave the cars came to the conductor personally. Such order was not posted upon the bulletin boards, but the standing order with respect to operating the trains over Keating mountain was, but whether it was posted there during Wooden’s employment the record does not disclose, or whether it was in fact ever brought to his attention does not appear. What does appear is this. That standing orders not appearing in the book of rules the men find on the bulletin boards. That the rule in question had been posted upon the bulletin board for a long time. The conductor did not remember when he last saw it, but knew of its existence; did not know if it was on the black board at the time of the accident; that they are sometimes torn down, and for all he knew this may have been. Deceased had only been in the employ of the road for three and one-half months, and a fair inference from the conductor’s testimony is that the rule was posted a long time before. Whether it was there when deceased entered upon his employment, or whether it had then been torn down, does not appear. I therefore think that it may not be taken as a conclusive fact that deceased had notice and knew of the rule regulating the management of trains down Keating mountain. The law requires not only that the rule be formulated and adopted, but that it be promulgated. Corcoran v. D., L. & W. R. Co., 126 N. Y., 673; 38 St. Rep., 251.

Promulgation is to make known; it means that such rule shall be brought to the attention of the servants affected thereby, or that it be given such publicity as that the servant in the proper discharge of his duties is bound to take notice of it, when knowledge is presumed. If the rule was not upon the bulletin-board when deceased entered the employment, then as to him there was no promulgation, and he was not bound to take notice of it, and search is vain to show that he received information from any other source, or from that. AYhether this was a proper promulgation of the rule as to deceased I think was a question for the jury.

Upon all the facts of the case, the conclusion is reached that the jury would have been authorized in finding negligence upon the part of the defendant in attempting to take the train down the inountain under the existing circumstances and conditions; that thereby control was lost of the train by reason of the condition of the track and insufficient and defective brake power, producing the accident and injury complained of.

These views lead to a denial of. the motion for a reargument.

White, J.

If the motion for a reargument is to prevail, it must be upon the sole ground that the order of the general term granting a new trial is in conflict with a controlling decision upon the question as to the relation which existed between the conductor of the train of cars, upon which the deceased lost his life, and the deceased, who was at the time a bralceman upon the same train. The theory of the plaintiff upon the trial, and that adopted by the court in ordering a new trial, was that the evidence given would have justified the jury in finding that the injury complained of was caused by the failure of the conductor in charge of the train to select and make use of the proper means and appliances for safely moving the train over Keating Mountain. As the record stands, it must be assumed that by dividing the train, and moving it in sections, or by enlisting more help in the work of handling it, it might have been taken over with safety; at any rate there is no evidence that it could not have been. The means- and appliances to do the work with safety were supplied by the defendant, but the manner or'mode of adjusting and using them was left to the discretion of the conductor, and for the purpose of this motion (only) it may be assumed that the proximate cause "of the action was the failure of the conductor to properly adjust and use such means and appliances.

Under the circumstances the whole duty of the defendant to the deceased was discharged when it placed proper and sufficient means and appliances for the movement of the train in the hands of the conductor and vested on him the right to use those means and appliances in his discretion, and his failure to make a proper use of them was that of a co-servant and not of the master.

The trial of the case proceeded, and the order granting a new trial was based, upon the assumption that for the time being the conductor of the train occupied the relation of master to the deceased, and not that of a co-servant; in other words, that in attempting to take the whole train over the mountain at once instead of dividing it or enlisting more help in handling it, the conductor was discharging a duty imposed by law upon the defendant.

The particular business or undertaking in which the conductor and deceased were engaged at the time of the accident was that of moving a train of cars over a mountain. As to all work necessary to be performed in that business it seems to me to be settled by the controlling decisions of the courts of this state that the conductor and the deceased were co-servants.

The record shows the train to have been in all respects an ordinary one, that the deceased knew, or was chargeable with knowledge of the way in which trains were moved over the mountain and of the fact that the means and appliances to be used were in the discretion of the conductor.

The case then, in brief, is one where the master has supplied his servant with sufficient means and appliances for doing the work in hand, but has left the selection of those means and appliances to the judgment and discretion' of one of those servants, to the knowledge- and with the assent of the others, and one of the latter is injured by the failure of the one vested with such discretion to properly adjust, select or use the means and appliances furnished by the master. It was the duty of the defendant to provide suitable means for taking the ill fated train over the mountain, but the selection and use of those means must necessarily be entrusted to its servants in charge of the train; in the nature of things no general agent could be present to discharge the duty. I think the responsibilty for the proper adjustment, selection and use of those means and appliances was with the conductor of the train as a co-servant with the deceased, and not his master. Such selection, adjustment and use of those means and appliances was a part of the ordinary and necessary work to be done. The conductor was not more than a superior agent engaged in the same general business with the deceased, and for an error of judgment on the part of such agent under the circumstances disclosed by the record before us, the master is not liable.

The deceased took the risk of the defendant’s mode of doing business, in which he lost his life, though a safer one might have been followed, because he knew or was chargeable with knowledge of the way in which that business was done.

I am of the opinion that a re-argument of the case should be allowed on the ground that the order granting a new trial is in conflict with the law holding that the master is not liable to one servant for the injury caused by the negligence of another. Sherman v. The R. & S. R. R. Co., 17 N. Y., 158; Dobbins v. Brown, 119 id., 188; 28 St. Rep., 957; Crispin v. Babbitt, 81 N. Y., 516; Neubauer v. The N. Y., L. E. & W. R. Co., 101 id., 607; Rose v. Boston & Albany R. R. Co., 58 id., 217.

Motion for re-argument denied.


author: White, J. Titus, Ch. J.

text:
    In the Matter of the Application of The City of Buffalo to acquire Land for Park Purposes.

      (Superior Court of Buffalo, General Term,

      Filed May 3, 1892.)

    Eminent domain—Jurisdiction of superior court of Buffalo.
    The legislature has no power to confer jurisdiction upon the superior court of Buffalo to appoint commissioners to select and locate lands for park purposes outside of - said city, as was attempted to be done by chap. 557, Laws 1887.
    Appeal by Miles Wasson from a final determination of this court in this proceeding, talcing .and appropriating certain lands owned by him, and situated in the town of West Seneca, for a public park and streets and approaches thereto. The appellant resides on the premises about to be taken.

      John Cunneen and Stephen Lockwood, for appl’t; William F Mackey, for the city of Buffalo, resp’t.
   White, J.

This proceeding is founded upon chapter 557 of the Laws of 1887, which is entitled as follows:

“An act to authorize the park commissioners of the city of Buffalo to select and locate such grounds as may be deemed desirable for park purposes in the Thirteenth ward of said city, and in the town of West Seneca, Erie county.”

The body of the act provides, among other things, that the park commissioners may select and locate such lands in * * * the town of West Seneca as may be deemed desirable to be' reserved and set apart for one or more public parks, but that before such lands shall be taken by the city of Buffalo the common council of said city shall declare its determination to take and appropriate the lands so selected and located, or so much of the same as the said common council shall determine to take; prescribes the mode of procedure and methods by which the title shall be acquired, and names this court as the one in which the proceeding must be prosecuted, and requires the issue and sale of bonds by the city to pay for such lands as may be taken under the provisions of the act The method of acquiring the title to the lands and paying therefor is essentially different from that prescribed by the charter of the city of Buffalo. The park commissioners selected and located the lands of the appellant in the town of West Seneca as a part of those deemed desirable to be reserved and set apart for park purposes, and thereupon this proceeding was instituted and prosecuted to a final determination, in compliance with the statute of 1887. It is claimed by the appellant that the order appealed from should be reversed on the grounds, first: That testimony offered in his behalf on the hearing before the commissioners, was improperly excluded. The testimony excluded was that of David Walker, and was directed to the value of sand shown to exist in a considerable quantity on the lands of the appellant This witness in fact testified quite at length concerning the situation and condition of the lands, the existence and amount of sand upon it, and gave his opinion of the value of the land as it was.

It can hardly be said that the exclusion of his testimony as to the value of the sand alone, even if its admission would have been proper, prejudiced the appellant.

Second: The appellant claims that the amount of damages awarded to him was inadequate. The testimony on this point was conflicting, and the finding of the commissioners must be treated as conclusive.

Third: The appellant next claims that, this chapter 557 of the Laws of 1887, in so far as it prescribes the method or mode of procedure with reference to lands situated in the town of West Seneca, was repealed by chapter 95 of the Laws of 1890, as amended by chapter 247 of the Laws of 1890, and that therefore as to the lands of the appellant this court has no jurisdiction in this proceeding.

On the first day of May, 1890, the legislature of this state passed an act called and known as the Condemnation Law, which prescribes the method of procedure in proceedings for the condemnation of real property for a public use, and that method of pro-

cedure differs from that prescribed by the act of 1887= The Condemnation. Law went into effect May 1, 1890, and this proceeding was commenced June 9, 1890. The claim of the appellant is that the act of 1890 repealed the act of 1887. A somewhat careful reading of the act of 1890 convinces me that it was intended to cover tlxe whole subject-matter of the method of procedure in a case like this as to lands situated outside the city limits, and that it did by implication repeal the act of 1887 in so far as it prescribed a method of procedure for acquiring title to real estate situate in the town of West Seneca, and that since the Condemnation Law became of force it has been necessary to conform to its provisions, or method of procedure, in proceedings to acquire title to real estate outside the city limits for public use for the city of Buffalo.

Where a revising statute covers the whole subject matter of antecedent statutes, plainly by legislative intent it is to be deemed to contain the entire law on the subject, and virtually repeals the former enactment. Matter of N. Y. Institution, etc., 121 N. Y., 234; 30 St. Rep., 921; Matter of Washington St., A. & P. R. R. Co., 115 N. Y., 442; 26 St. Rep., 504.

Fourth: It is next claimed that chapter 557 of the Laws of 1887 is in conflict with § 16 of article 3 of the state constitution, which provides that no local or private bill which may be passed by the legislature shall embrace more than one subject, and that that shall be expressed in its title. The title of the act in question in terms mentions but one subject, and that is the conferring upon -certain citizens of Buffalo of the authority to select and locate lands which they, the citizens aforesaid, may deem desirable for park pur-poses. There is no intimation in the title that the act contains any provisions for the maintenance or embellishment of such parks, as in the case of chapter 165 of the Laws of 1869, by virtue of which the park commissioners of the city of Buffalo were appointed. It was competent for the legislature to delegate to the park commissioners the right to select and locate the lands for public use by the city of Buffalo, and thereby modify its charter in that respect for the occasion; such right of selection and location by virtue of the charter being in the city itself, acting through its common council. There is no restraint upon the exercise of the right of eminent domain by the legislature, except that the property must be taken for a public use, and compensation must be made in the manner prescribed by law. Matter of Union E. R. Co., 112 N. Y., 74; 20 St. Rep., 498; People v. Smith, 21 N. Y., 598.

The selection and location of lands to be taken for a public use, under0 and by virtue of a statute, by a city might properly constitute a subject of legislation, and in this case when the legislature, instead of selecting and locating lands to be taken by the city of Buffalo for park purposes directly by the terms of the statute, as in the matter of the acquisition of certain lands in New York and Westchester counties, reported in 99 N. Y., at page 589, delegated such right of selection and location to the park commissioners, it but exercised the power it possessed in the behalf, and the designation of such persons as its agents to select and locate was a proper subject of legislation within the meaning .of the constitution.

The ¡Drovisions contained in the body of the act by which the method of procedure is different from that prescribed by the charter in taking and paying for lands for public use, also constitute a subject of legislation within the meaning of the constitution. It cannot be said that this last named subject is expressed in the title of the act. As we have said before, there is nothing in the title of the act to indicate that its body contains provisions on any subject except to confer on certain persons authority to select and locate such lands as in their judgment may be deemed desirable for park purposes.

In other acts of the legislature on the subject'of selecting and taking lands for public uses the titles of the bills have expressed in general terms their purpose, as in the 99 N. Y. case where this constitutional question was quite fully considered The title of the bill in that case, chapter 522, Laws 1884, was as follows: “ An act laying out public places and parks and parkways in the Twenty-third and Twenty-fourth wards of the city of New York, and in the adjacent districts of Westchester county, and authorizing the taking of the lands for the same.” Ho active duty was imposed by the act of 1887 upon the park commissioners of the city of Buffalo. The bare authority was conferred upon them to advise the city of Buffalo to acquire certain lands for park purposes; and the city was left at perfect liberty to act upon or reject such advice.

It cannot be claimed that the provisions in the body of the act in question with reference to the taking and paying for lands for park purposes, in other words the method of procedure therein prescribed, is necessarily germane to or fairly connected with, or that the same tends to promote the selection by the park commissioners of lands which they might advise the city to acquire. And the well settled law concerning such acts of the legislature is that every provision contained in the body thereof must be germane to and fairly connected wi’h and tending to promote the subject embraced in the title. Van Brunt v. Town of Flatbush, 128 N. Y., 50; 37 St. Rep., 824; The People v. Supervisors, 43 N. Y., 10.

It is said: "The evil at which the constitutional prohibition was aimed was the danger tobe feared from placing in bills largely of a general nature, and having titles expressive only of such nature, provisions bearing upon private interests, or affecting portions only of the state or its people; or to mass such provisions in bills with vague or narrowed and deceptive titles; or in bills seeming from their titles to be local or private to include important provisions of a general or public nature, so that the titles of the bills would give no notice to the public or citizens without or the legislature within what provisions diverse, and faulty in subject, might be hidden in their numerous sections. It was believed that in this way laws were enacted unjustly benefiting or harming the individual or seriously affecting more or less circumscribed portions of the state; or that improper laws were enacted with no notice to the public or the individual of the legislative purpose, with no notice in fact to legislators not in the secret of what the bill contained on which they were called to vote. The design of the provision was to prevent any individual or knot of individuals from being especially helped or harmed by a bill unless that bill was confined to one subject and its title expressed that subject, and that there should be no combination in one bill of several private or local subjects.” People v. Hills, 35 N. Y., 449.

The only object of the legislature in passing the bill in question, as expressed by its title, was to authorize certain individuals to select and locate lands deemed by them to be desirable for park purposes in the city of Buffalo and the town of West Seneca. And the title of the bill gave no sign or hint that the body thereof contained provisions changing the method of procedure in exercising the right of eminent domain by the city of Buffalo from that prescribed in its charter; it seems clear that that subject of the act is not expressed in its title. Matter of Blodgett, 89 N. Y., 392; Matter of Paul, 94 id., 497; People v. Allen, 42 id., 405; Matter of Flatbush, etc., 60 id., 398; Astor v. N. Y. Arcade R. R. Co., 113 id., 93; 22 St. Rep., 1; Johnston v. Spicer 107 id., 185; 11 St. Rep., 436.

It cannot be said that the purpose or object of the act in question, as expressed in its title, was the taking and paying for lands for public parks by the city of Buffalo; not a word in the title purports to relate to that or such a subject. For aught that is indicated by the title of the bill in question, it might have been intended by the legislature as the first step in a scheme to establish a public park by direct action of its own. The power to acquire lands for public uses was possessed by the city of Buffalo by virtue of its charter, when the act of 1887 was passed. I am of the opinion that the act in question is in conflict with that part of the constitution which provides that no local or private bill shall embrace more than one subject, and requires that subject to be expressed in its title.

The legislature had the right to appropriate private lands in Buffalo and West Seneca for public uses; it had the right to select such lands directly, or to delegate the right of selection to others. There is no restraint upon the exercise of the right of eminent domain by the state, except that the property must be taken for public use, and compensation must be made in the manner prescribed by law. Matter of Union E. R. R. Co., 112 N. Y., 74; 20 St. Rep., 498; People v. Smith, 21 N. Y., 598.

Fifth: The appellant further claims that this court has not jurisdiction of the subject matter of this proceeding. By chap. 210 of the Laws of 1839, the legislature created “The recorder's court of the city of Buffalo,” and conferred upon it power to try local actions arising in said city and not elsewhere. The recorder with the mayor and an alderman, or with any two aldermen, were given a criminal jurisdiction as to certain offences committed within the city of Buffalo. By the constitution of 1846 general jurisdiction in law and equity was vested in the supreme court. It recognized and continued the recorder’s court of Buffalo and other local courts in cities and villages with the powers and jurisdiction they then possessed, and authorized the legislature to establish inferior local courts of civil and criminal jurisdiction in cities. In 1850 the legislature provided by statute that the recorder’s court of Buffalo should thereafter have jurisdiction of an action or proceeding for the recovery of real property, or of an interest therein, or for the determination in any form of any right or interest in real property or for injuries to real property where the cause thereof arose or the subject thereof was situated in said city.

In 1854 by an act of the legislature the name of the court was changed to the Superior Court of Buffalo ” which act further provided that thereafter said court should have jurisdiction of actions or proceedings for the recovery of real property, or of any interest or estate therein ; or for the determination in any form of any such right or interest or claim thereto and for injury to real jproperty and chattels real when the subject thereof was situated within the city of Buffalo.

By subsequent constitutional provisions the existence of the superior court of Buffalo was recognized and continued with the powers and jurisdiction it then possessed and such further civil and criminal jurisdiction as might be conferred by law. By chap. 239 of the Laws of 1873 the legislature attempted to confer general jurisdiction upon this and other superior courts of cities, but the act was held to be unconstitutional. By chap. 139 of the Laws of 1875, and chap. 448 of the Laws of 1876, the legislature extended the jurisdiction of this court, but confined such extension to actions and proceedings where the matter should arise or the subject thereof be situated within the city.

If it be competent for the legislature to confer jurisdiction upon this' court to entertain and' determine proceedings for the con-<1 emulation of lauds situated without the city, for a public use by the city, then such jurisdiction is given by ihc net of 1P87, v.Ti-in terms provides for the acquisition of such lands by the exer cise of the right of eminent domain by the city in this court. The power of the legislature must be found, if at all, in the constitutional provisions that this court shall have such jurisdiction in addition to that it possessed at the time of the adoption of the _ judiciary article of the constitution on January 1, 1870, as might be conferred by law. And unless restrained by constitutional provisions, the legislature had the power to confer such jurisdiction. That the constitution does impose such a restraint or limitation upon the power of the legislature, and that it cannot confer jurisdiction upon this court’ to entertain and determine this proceeding as to the real estate of the appellant in West Seneca, seems to „be firmly established by the decisions of the courts in this state.

The proceeding is judicial in its nature. Donnelly v. City of Brooklyn, 121 N. Y., 9; 30 St. Rep., 501.

The city court of Brooklyn was created by the legislature in 1840, and occupies the same status in the judicial system of this state as the superior court of Buffalo. They are both local and inferior courts within the meaning of the constitution.

In 1871 several persons were killed by the bursting of the boiler on a ferry boat owned by the Staten Island Railroad Company. Suits were brought in the city court of Brooklyn against the company to recover damages for its alleged negligence in causing the deaths. The company has no office or place of business in Brooklyn, and it was served with the summons and complaint in New York. The plaintiff recovered a judgment, which was affirmed on appeal by the general term of the city court of Brooklyn. The accident happened in the city of New York. The court of appeals held that it was not competent for the legislature to confer jurisdiction of such án action upon the city court of Brooklyn. Local and inferior judicial tribunals are limited in their jurisdiction in proceedings to acquire real property by the exercise of the power of eminent domain to the territorial division of the state within and for which such courts are established by the legislature. Landers v. Staten I. R. R. Co., 53 N. Y., 450; Carroll v. Langan, 44 St. Rep., 224.

I can see no distinction in principle between that case and the one at bar, and my conclusion is that the order appealed from should be reversed.

Titus, Ch. J.

I concur with my associate in the conclusion reached by him that the order appealed from should be reversed. The act attempts to confer jurisdiction upon this court to appoint commissioners to select and locate lands for park purposes in the town of West Seneca, outside of the city of Buffalo.

This court is one of local and inferior jurisdiction, its territorial jurisdiction is co-extensive with the territorial limits of the city of Buffalo, and when the subject matter of the action or proceeding is outside of the city limits it cannot take jurisdiction and determine it. Landers v. Staten Island R. R. Co., 53 N. Y., 450.

I do not think the act is unconstitutional, § 16, article III, as embracing more than one subject in the act, not expressed in the title.

The proceeding pointed out to acquire title to the lands by the city is fairly within the subject and meaning of the act as expressed in the title. The People ex rel. The City of Rochester v. Briggs, 50 N. Y., 553; In the Matter of Volkening, 52 id., 650.

Order reversed.

Hatch, J., not sitting.


author: Van Brunt, P. J.

text:
    Eugene Kelly, Pl’ff, v. Charles H. Noxon et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

      1. Lease—Surrender.
    An accepted surrender may terminate any lease, although for more than one year ; the only question being as to whether there has been such surrender and acceptance.
    2. Same—What will not amount to.
    Defendants desiring to he released from a lease, plaintiff’s agent told one of them that there was a party who would take the premises if they would deliver them up immediately, to which the defendant replied, “ All right; of course it was short notice,” but he would see what he could do. Two days later defendants moved out and delivered the keys to the clerk of the agent, to whom nothing had been said in the meantime. Held, not sufficient to establish an accepted surrender.
    Motion for new trial upon exceptions directed to be heard in the first instance at the general term.

      N. A. Lawlor, for the motion; C. J. Hardy, opposed.
   Van Brunt, P. J.

This action was brought to„ recover the rent of certain premises in the city of New York.

It appeared that the plaintiff had leased to the defendants offices for one year, which was afterwards extended to four years, and that the defendants on or about the 1st of June of the second year vacated the said premises, and the question involved is as to whether there was an accepted surrender by which they were discharged from- the further payment of rent.

It was claimed upon the part of the defendants that the plaintiff made an agreement with them that if they would remove and vacate the premises by a certain time, he would release them from the lease; that the defendants carried out their agreement by vacating the premises in time and delivering the keys to the plaintiff’s agent, who accepted the same.

It was claimed upon the trial that there could.be no surrender of the lease without writing, because it had more than one year to run.

That this position, however, was not well taken, is shown by the case of Hurley v. Sehring, 43 St. Rep., 240, and cases there cited.

An accepted surrender may terminate any lease; the only question arising being as to whether there has been such acceptance and surrender.

It appeared from the evidence offered upon the part of the defendants in the case at bar that they had been occupying as above stated the premises in question, and that they desired to be relieved from the lease which they had entered into, and made application to the plaintiff’s agent to that effect some time in March, stating that they desired to be released after the 1st of May following.

They were told that if they could get a tenant they would be released. Subsequently, the last week in May, one of the defendants had a conversation with one of the agents of the plaintiff, who stated to him that there was a party who would take the offices if they would deliver them up immediately, whereupon the defendant told him “ All right; of course it was short notice," but he would see what he could do. He testified that he talked to his brother about it and decided to vacate them at once and did vacate them within a day or two, fixing the day or two because two days after was the first of June and the agent said he wanted them about the first of June. They thereupon went down stairs and gave the keys to the clerk of the agent, one of the agents being there at the time. Nothing further was said nor were the offices afterwards occupied by the defendants.

The court upon this evidence directed a verdict for the plaintiff and the question arises as to whether the proof was sufficient to establish an accepted surrender.

We think not. It is apparent from the testimony of the defendants that it was not definitely settled at the conversation with the agent whether they would remove or not, because the reply was, when told that the offices could be rented if the defendants could remove immediately, “Of course it was short notice,” but he would see what he could do, and he talked to his brother about it and they decided to vacate it at once, and did vacate within a day or two. afterwards.

No communication was made to the agents subsequent to this undecided answer until the incident of the keys; nor is there any evidence of an agreement to accept any surrender at the time of the delivery of the keys referred to.

There was po contract for surrender. The defendants did not move out immediately, but not until after the expiration of a day or two thereafter; and there was no evidence of any meeting of minds' in respect to this question of surrender. In order that a party may be released upon the claim of a surrender of a term within the statute the evidence must be strong and unequivocal showing an accepted surrender, otherwise the provisions of the statute are defeated. It is only when there has been an accepted agreement of surrender that the provisions of the statute do not apply-

An agreement to surrender at a future time comes within the statute; and in the case at bar there were no acts done by the agents of the plaintiff which were not entirely in harmony with the powers conferred upon them by the lease from the plaintiff to the defendants.

Under these circumstances we fail to see that the proof was of that character which would have justified the court in submitting any question to the jury.

We think the exceptions should be overruled and judgment rendered for the plaintiff upon the verdict, with costs.

O’Brien and Andrews, JJ., concur.


text:
    William Noble, Resp’t, v. James F. Carey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Bills and notes—Bona vide holder—Accommodation paper.
    Where one discounts accommodation paper by paying to a third person a debt due to such person from the payee and crediting the balance to the payee on an account with him, he is a bona fide holder to the extent of the payment made to such third person, and can recover that amount of the maker.
    2. Same.
    In such a case it is immaterial what the original agreement between the payee and the transferee was.
    Appeal from judgment entered upon the verdict of a jury and from order denying motion for new trial.

      J. S. Ross, for app’lt; J. H. V. Arnold, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note made by the defendant to the order of one Blinn, for the sum of $250, and which said Blinn endorsed and delivered to the plaintiff.

The defendant admitted the making and delivery of the note to Blinn, and alleged that the said note was made by him for the accommodation of Blinn, and was delivered to said Blinn without any consideration whatever, and upon the express understanding and agreement with Blinn to have the same discounted and procure cash therefor; and that instead of this Blinn delivered the note to the plaintiff without any consideration and without procuring the cash for the same. The answer further denied that the plaintiff had parted with any value whatever for the note. Upon the trial, evidence upon the part of the defendant was offered tending to show that the circumstances under which the defendant gave the note to Blinn were as follows : That the latter went to him and asked him for a loan of $250; that defendant thereupon said to him that he did not have the money to spare at the time, and at Blinn’s suggestion he gave him the note on which to raise the money, so that he could use the note and get the money on that, as it was not convenient for the defendant to get the money ; that after Blinn had received the note he asked the plaintiff to discount it for him, which he declined to do, and replied that he would take it and put it in his safe, and if paid at maturity he would give Blinn credit therefor, whereupon the note was endorsed by Blinn and delivered to the plaintiff. Upon the part of the plaintiff evidence was given tending to show that Blinn came to the plaintiff’s office with the note stating that he wanted him to discount it, as he owed the plaintiff’s sister-in-law for board, and she had a lot of things belonging to him, and he wanted to pay her; that the plaintiff took the note stating that he would investigate it, and having received a favorable reply in regard to the note, he stated to Blinn that he would cash the note for him and pay his sister-in-law, and the balance he would give him credit for on his account, to which Blinn assented, whereupon the plaintiff gave him the order for his furniture, and paid the sister-in-law $224.50, and gave Blinn credit for the balance on what he owed.

It was testified by the plaintiff that this payment to the sister-in-law was made on the 16th of June. There was some evidence, however, given by the sister-in-law tending to show that the payment was made on the 10th of July.

The issue thus presented was submitted to the jury, and the jury were charged that unless they were satisfied that this note was discounted and the money advanced under the agreement that the money should be applied to the payment of Blinn’s debt to the sister-in-law of the plaintiff, no recovery could be had; and that in any event no recovery could be had beyond the amount thus paid. Upon this issue the jury found a verdict in favor of the jjlaintiff, and from the judgment thereupon entered, and from the order denying motion for new trial, this appeal was taken.

We find no error in the record which justifies a reversal of the judgment. The case was submitted to the jury more favorably for the defendant than perhaps the evidence warranted.

By the request to charge it seems to have been assumed by the defendant that if this note was delivered to the plaintiff prior to June 16th, under the agreement testified to on behalf of the defendant by Blinn, viz.: that he would credit it to his account if it was paid, that no recovery could be had. This clearly was error, because it was entirely immaterial as to what the original agreement between Blinn and the plaintiff was. If at any subsequent time an agreement was made by which the plaintiff discounted the note or advanced money upon the faith of it, he became from that time the holder for value. It appears from the verdict that the jury have found that the plaintiff has advanced $224.50 to Blinn, because the payment of Blinn’s debt at his request by the plaintiff is equivalent to an advance of money by the plaintiff to Blinn ; and this was all for which the plaintiff wqs allowed to recover, and he is clearly a holder for value to this extent.

Without in any way discussing the question as to whether a recovery might not have been had under the circumstances for the whole amount of the note, it is sufficient that no error was committed, and the order and judgment should be affirmed, with costs.

O’Brien and Andrews, JJ., concur.