text:
    Mortimer Trumble, Resp’t, v. John M. Peck, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Fraud—False statement.
    It is a fraud for one to make, with intent to deceive, a statement material to the contract, as known to he true, when he does not know whether such statement is true or false.
    Appeal from a judgment entered upon a verdict for plaintiff.

      Lewis Cass, for app’lt; N. H. Anibal, for resp’t.
   Learned, P. J.

The verdict of the jury has decided that the defendant was guilty of a fraud in the sale of the comptroller’s certificates to the plaintiff. The only question for us is whether there was such an absence of proof to sustain a verdict that the plaintiff should have been nonsuited, or at least that the verdict should be set aside.

The sale was of a tax certificate of thirty acres in lot No. 92, Chase’s Patent, in the town of Bleecker. The plaintiff cannot read or write. The defendant had two tax certificates of different years of the same piece of land. He also had a tax certificate of lot 91, Mayfield Patent, or a part of it. The defendant told the plaintiff he owned land near Sprung’s; one lot, the Washburn lot, the other the J. B. Matthews lot. Plaintiff said if that was the John B. Matthews lot he would take it at $3 per acre. Defendant said it was; and that it adjoined the Washburn lot, and the Washburn lot adjoined Sprung; they were all there in that vicinity.

The plaintiff did not know the location of the lots. The parties were at Sprung’s. One Worden was there and defendant offered Worden the other lot and Worden thought he would take it. The next day plaintiff told defendant he would take the Matthews lot, and Worden that he would take the Washburn lot provided they were there. Plaintiff supposed the lot 92 was in the vicinitv of Sprung’s and adjoining the other lot.

In fact lot 92 is not in the vicinity of Sprung’s and does not adjoin the lot 91, Mayfield Patent, but is fifteen or more miles distant.

The plaintiff relied on these statements of defendant that the lot was near Sprung’s and adjoined the other lot. And defendant" had told him that the Washburn lot adjoined Sprung’s, and that this adjoined the Washburn lot.

The plaintiff’s testimony to the transaction is supported by that of Sprung to Worden. And though the defendant denies these statements, the jury have sustained the plaintiff’s case.

The court properly stated to the jury, that in order that plaintiff should recover they must find not only that the statements were untrue but that defendant made them with intent ■ to x defraud. And that defendant might be liable if he represented that this was the Matthews lot, not knowing whether this was true or not, if there was the intent to deceive. This, of course, is correct. It is a fraud for one, with intent to deceive, to make a statement as known to be true material to the contract, when he does not know whether it is true or false.

How the defendant says himself that he did not know anything about the Washburn and Matthews lots. Further, the testimony of Eugene Peck is that defendant told him he had lots 91 and 92 and that Eugene owned lot 93 in the Mayfield Patent; that Eugene said if lot 92 adjoined he would buy it; that when he saw what patent it was, he showed defendant that lot 92, Chase’s Patent, was a good many miles from 93, Mayfield Patent, and he did not want it; that he got a map to show defendant how far apart the lots were, fifteen or twenty miles apart; that defendant said that he (defendant) was mistaken, and thought they adjoined. This was a few days before the sale to plaintiff.

The defendant then testifies that Eugene Peck did get a map; and when he is asked if he then thought lot 92 Chase’s Patent lay next to 91 Mayfield’s Patent, he answers: “I did not know to the contrary, and did not care about it, and did not try to; I do not try to know where any lot is.’’ He does not deny that he has been at the office of the town clerk, and will not swear that he has not looked at a map of the town. He says: “I have no anxiety to know where any land is located; I do not pretend to know where a lot is that I own; I do not want to.” He will not deny that he did not see'on the map shown him by Eugene where the lots were, and he will not say that he did not look at that map.

Here we have the positive testimony of Eugene that he showed defendant that the two lots were fifteen miles apart. Eugene will not testify whether he made any statement as to the correctness of the map. But this is of no consequence. The distance of the lots is proved positively by Myers, the town clerk, from the official map. All that the defendant says is that Eugene told him that if the map was right the lots are some ways apart, and that Eugene said: “ Maybe it- is a mistake.” The defendant will not, and does not, deny that Eugene informed him the lots did not adjoin; and that he does not know whether after that he supposed they adjoined or not; and that he did not think Eugene was lying to him.

Mow his own testimony convicts him. He says plainly that he did not know where his land lay. He evidently thought that there was no risk in making false statements, unless their falsehood had been previously demonstrated to him. He' endeavored to keep himself ignorant so that he could say what he pleased and could flatter his conscience that he did not positively know that his statements were false. That contrivance for practicing a fraud is not successful at law, however much a man may quiet his conscience thereby.

But in this case the jury might have believed Eugene, whose .testimony was positive; and might have disbelieved the defendant, whose statement was that Eugene said there might be a mistake. Even if there was a mistake, the defendant had been cautioned that these lots appeared to be fifteen miles distant. And he could not, therefore, innocently state that they adjoined, until by further examination he had satisfied himself what was the fact. Such examination he did not make; because as he says he did not wish to know.

The judgment and order should be affirmed, with costs.

Mayham, J., concurs in result.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the accounts of Frank A. Teed, Adm’r with the will annexed of Louis B. Grant, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

      ' 1. Will—Charitable bequests.
    Testator by his will gave to his wife the use of all his real estate and personal property for her life; gave to the Cook Academy $1,000 payable one year after his wife’s death, and bequeathed and devised to respondent, the New York Baptist Union for Ministerial Education, “for the endowment of the Rochester Theological Seminary,” the residue of his estate, both real and personal. The surrogate decreed that one-half of the estate, less the amount bequeathed to Cook Academy, should be paid to respondent, and that the same should be paid entirely out of the avails of the personal property. Held, that this lather direction was erroneous; the property given to respondent consisted of both real and personal property, and it was therefore entitled to receive one-half the personal property and one-half the real estate. There is no authority for holding that a devise of real estate shall be apportioned out of the personal property.
    2. Same—Computation of amount op bequest.
    Where the computation is to be made on an accounting after the death of the life tenant, it should be made, not by adding to the value of the estate at the time of the death of decedent the value of the life estate for the period given by the annuity tables, but by adding the value of such life estate from the death of testator to that of the life tenant, and a credit should be given for any increase in the estate.
    3. Same—Trust.
    The expression in the bequest to re pondent, that it is “ for the endowment of the Rochester Theological Seminary,” in the absence of proof that the seminary was an independent corporation, is not sufficient to show that testator intended to make the residuary legatee a trustee for the benefit of the seminary.

      Appeal from a decree of the surrogate of Chautauqua county settling the accounts of the administrator with the will annexed of Louis B. Grant, deceased, and directing the distribution of the assets.

      George Barker, for the administrator and next of kin of Julia A. T. Grant, the former executrix, app’lts; M. H. Briggs, for the New York Baptist Union for Ministerial Education and the heirs at law of Louis B. Grant, resp’ts.
   Macomber, J.

Louis B. Grant died on the 16th day of March, 1884, leaving a last will by which, after the payment of debts and the defraying of the expense of a family monument, he gave absolutely to his wife all his household goods and effects and per' sonal adornments; and also the use of all of his real estate and personal property during her natural life. The will also contained provision for the payment of an annuity of $100 to the testator’s brother, Henry D. Grant, but this provision is of no moment on this appeal because the beneficiary died before the time when such annuity by its terms should begin to run. The testator gave to the Cook Academy, located at Havana, N. Y., the sum of $1,000, payable in one year from the death of his wife.

The eighth clause of the will is as follows :

“I give, bequeath and devise to the New York Baptist Union for Ministerial Education, located at Eochester, N. Y., for the endowment of the Eochester Theological Seminary, all the rest, residue and remainder of my property and estate, both real and personal.”

The last named legatee and devisee was charged with the duty of maintaining at its own expense a cemetery lot in Fredonia, at a cost not to exceed $3 a year.

, The executors were empowered to sell and convey any part of the real estate. The widow and one Mr. Warren were named as executors, but letters testamentary were issued to the wife alone, upon whose death, in the year 1887, letters of administration with the will annexed were issued to the appellant Teed.

The personal estate of the testator was inventoried at' the sum of $20,896.67; and the real estate, which was sold by the executor under the power contained in the will, was of the value and netted the sum of $3,700, making in all of real and personal property the sum of $24,596.67. The other personal property not inventoried netted the sum of $122.89, and the amount of property set aside for the benefit of the widow, and not inventoried under the statute, was $150, making an estate, of both real and personal property, of $24,869.56. .The debts amounting to $6,863.40;

The principal question upon this appeal relates to the amount of the bequest and devise given to the New York Baptist Union for Ministerial Education, under chap. 360 of the Laws of 1860, by which it is prohibited to a person to devise and bequeath more than one-half of his estate to corporations of this description, where there remain either descendants, or wife, or father or mother of the testator.

By the decree of the surrogate, after paying the expenses of administration of the estate, the sum of $9,092.25 was adjudged to be the amount payable to the New York Baptist Union for Ministerial Education, being one-half, according to the figures of the surrogate, of the whole estate, less the sum of $1,000 bequeathed, and theretofore paid by the administrators, to the Cook Academy. This sum was adjudged to be paid entirely out of the avails of the personal property left by the testator, and no part of it came from the proceeds of the. sale of «the real estate.

In this respect we think that the learned surrogate made an error. The property given to the New York Baptist Union for Ministerial Education consisted of both real and personal property, and covered the whole of the residuum, of the estate after the life of the widow. We do not perceive upon what principle the half of the entire estate was so adjudged to be paid exclusively from the personal property.

The question is of moment in this instance, because the heirs-at-law of Louis B. Grant and the next of kin of his widow are not the same persons.

The general rule undoubtedly is, as the cases cited by the learned counsel for the respondents hold, that ordinarily bequests are payable out of the personal estate, if there is sufficient thereof. But there is no authority for holding that a devise of real estate shall be apportioned out of the personal property. The rule that should have governed the surrogate is, that the respondent, the residuary legatee and devisee, was entitled to receive one-half of the personal property and one-half of the real estate.

Much discussion has been devoted to the amount of money to which, under the statute already referred to, the residuary legatee and devisee was entitled. That is to be determined in this proceeding by the value of all the property bequeathed and devised as the same was valued at the time of the death of the testator, as is well adjudged in the case of Hollis v. Drew Theological Seminary, 95 N. Y., 166.

By that authority, in so far as the same is applicable to any question arising on this appeal, it was deóided in an action brought, not for the distribution of the estate, but for the construction of the will, and before any time for distribution had arrived, that the value of the life interest must be taken into account in determining whether or not a certain sum bequeathed was or was not more than one-half of the value of t£e estate within the meaning of chapter 360 of the Laws of 1860. It was stated there, in the elaborate opinion of Judge Earl, that the calculation upon which the judgment rested contained an element of uncertainty as to the duration of the lives of the persons having a life estate. The court says: The value of the estate in a case like this must be determined at the death of the testator, and that that must be ascertained by the help of annuity tables, or such other means as are in any case available. There is no present uncertainty of the value thus ascertained for the purpose of sale, purchase or legal administration. The life of the annuitant may turn out to be longer or shorter than the years given in the tables used, but that is a future event then unknown, and does not enter into any calculations of the present value in such a case.”

That was a case dealing in uncertainties; in the case before us there is no uncertainty, because the proceeding is for the final distribution of an estate after the death of the annuitant, the length of whose life is accurately known.

The learned counsel for the respondents has based his claim, and, so far as we„can ascertain, the surrogate has substantially held with him, by adding to the estate, for the purpose of, distribution, what might be deemed to be an incumbrance thereon by virtue of the life interest given to the widow for a period to be determined by the Northampton tables, which show that the widow, at the time of the death of the testator, had a prospect of life of about nine years. On the other hand, the counsel for the appellants has given an estimate based neither upon such prospect of life, nor upon the actual value of the property less the debts of the decedent.

In estimating the one-half of the value of the property to be received under this will by the New York Baptist Union for Ministerial Education, a result must be reached, not by the value of the property at the time of the death of the decedent, enhanced by the value of the life tenancy for the period given by the Northhampton tables, or any other pioper annuity tables, reckoned on her age at her husband’s death, but must be determined in this manner: there should be added, for the purpose of the calculation, the value of that annuity computed from the death of the testator, which was on the 16th day of March, 1884, to the death of the life tenant, which was on the 6th day of February, 1887, namely, for two years, ten months and twenty days.

Under the reasoning of Hollis v. The Drew Theological Seminary, supra, had it been known what the actual duration of the life tenancy would be, and not merely what it probably would be under proper annuity tables, the judgment of that court doubtless would have been a perfect guide to us on this appeal.

There should be made a proper allowance for the value of the life tenancy for the two years, ten months and twenty days, and a credit should be given the estate for any increase thereof, whether by failure of the inventory to embrace all the personal property or otherwise.

In some form or other the residuary devisee and legatee is entitled to receive on this accounting one-half of the value of the personal and real estate as it stood at the time of the death of the testator, less the bequest to the Cook Academy. If there has been any increase of such estate during the period since his death, the residuary devisee and legatee is entitled to one-half thereof; if there has been no increase then in some form, either by an allowance of a reasonable amount for the loss of the use of such property during the two years, ten months and twenty days, estimated on the basis of annuity tables, or on the basis of the loss of interest, the residuary legatee should be made as good, in respect to the estate, as though it had received one-half of the whole property at the time of the death of the testator, less the bequest to Cook Academy. The uncollectible debts, together with all of the expense of administration, must, of course, be deducted in that computation. Though we think, under § 2587 of the Code of Civil Procedure, we could pronounce an affirmative judgment on all the necessary facts before us, yet the record of appeal seems to be deficient in some particulars, so that in minor details we are not able to make a computation based upon the principles above stated. It follows, therefore, that the case must be returned to the surrogate of Chautauqua county for him to proceed in accordance with our view, unless counsel can agree upon the computation. In case of such agreement the necessity of sending the case back to the surrogate may be avoided.

There remains to be considered but one question, and that is the point made by the learned counsel for the appellants, that the trust attempted to be created by the residuary clause of the will is invalid, for the reason that this provision is an attempt to make the residuary legatee a trustee for the benefit of the Rochester Theological Seminary. The language of the will is, that this residuary bequest and devise to the New York Baptist Union for Ministerial Education is “ for the endowment of the Rochester Theological Seminary.” There is before us no proof of the existence, as a corporation, of the Rochester Theological Seminary, nor of its powers or functions. The use of the word “ endowment ” in the will is extremely loose, if, indeed, it be true, as we suppose, that there is in reality no corporation by that name.

The term manifestly has in this connection no meaning whatever, unless it be in the nature of the expression of a strong desire on the part of the testator that the fund so given to the residuary legatee should be used for one only of the many objects for which the real corporation was created, viz.: the support of this Theological school. The expression “ for the endowment of the Rochester Theological Seminary ” in this connection is meaningless under any definition that may be found, and it may safely be elided without detriment to the meaning of the will.

The fact, which is not shown in the appeal papers, but which was doubtless known to the testator, and which we, in common with the appellant’s counsel, may well believe to exist, is that the New York Baptist Union for Ministerial Education does support and maintain a theological school at the city of Rochester, generally spoken of as “ The Rochester Theological Seminary.” but we think there is nothing in the will which would lend support to the ingenious argument of the learned counsel, that the purpose of the testator was to make the residuary legatee a trustee for the benefit of that seminary, as though the latter were an independent and separate corporation.

The decree should be reversed, with costs of this appeal to all parties, with direction to the surrogate to proceed in accordance with these principles.

Dwight, P. J., and Corlett, J., concur.


author: Corlett, J.

text:
    The Town of Ontario, App’lt, v. The First National Bank of Andes, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Judgment—Fbaud—Remedy.
    This action was brought to declare certain town bonds void, and that a. judgment of the United States circuit court recovered in an action upon such bonds, and assigned to the defendant, be decreed a nullity, on the ground that the defendant was the owner of said bonds and fraudulently assigned them to the plaintiff in the action in which such judgment was recovered, without consideration, for the purpose of transferring the question of the validity of the bonds from the courts of this state, which had declared them void, to the United States court. Feld, that the action could not be maintained; that the judgment could not be questioned collaterally in this court, but that plaintiff’s remedy, if a fraud was practiced on the United States court, was by application to that court to set the judgment aside.
    Appeal from a judgment entered upon the decision of an equity special term in Wayne county, dismissing the complaint.

      J. Welling, for app'lt; W. H. Johnson, for resp’t.
   Corlett, J.

In December, 1883, an action was commenced in the United States circuit court for the northern district .of New York, by Dudley P. Ely against the plaintiff in this action. On the 14th day of July, 1885, the plaintiff in that action recovered a judgment against the plaintiff in'this action for $2512.68. The said Ely, at the time of the commencement and trial of that action, was a citizen and resident of the state of Connecticut, and the action was brought to recover the amount apparently due upon certain bonds of the town of Ontario, issued under an act passed April 11,1868, entitled “An Act to authorize certain towns of the counties of Oswego, Cayuga and Wayne to issue bonds to take stock in and for the construction of the Lake Ontario Shore Railroad,” as amended in April, 1869.

The plaintiff in this action alleges among other things the bringing of the action in the United States circuit court; the recovery of the judgment; that it remained unsatisfied and had. not been vacated or reversed; that the defendant, the First National Bank of Andes, was the owner of some of those bonds ; that the court of appeals of this state had adjudged them void, and that the bank to obviate the force of such adjudication fraudulently assigned without consideration, those bonds to Ely, who obtained a judgment upon them as above stated, and then assigned it to the bank, and that the bank was taking proceedings to enforce the judgment.

The complaint alleges in substance that the arrangement between the bank and Ely was colorable and fraudulent, and entered into for the purpose of transferring the question of the validity' of the bonds from the courts of this state, which had adjudged them void, to the circuit court of the United States.

- The prayer of the complaint is that the bonds may be adjudged illegal and void, and that the judgment of the circuit court of the United States may be decreed a nullity.

At the close of the trial of this action, the court dismissed the complaint upon the ground that the plaintiff’s remedy, if any, was an application to the circuit court of the United States to vacate and set aside the judgment and proceedings in the circuit court. Judgment was entered upon the decision of the trial court, and the plaintiff appealed to this court.

The allegations in the complaint in this action are to the effect that the judgment of the circuit court of the United States was absolutely void.

The act of March 3, 1875, § 5, 18 United States Statutes, 470, 1st Supp. Bi. S., is as follows : “ That if, in any suit commenced in a circuit court, or removed from a state court to a circuit court of the United States, it shall appear to the satisfaction of said circuit court, at any time after such suit has been brought or removed thereto, that such suit does not really and substantially involve a dispute or controversy properly within the jurisdiction of said circuit court; or that the parties to said suit have been improperly or collusively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this act, the said circuit court shall proceed no farther therein, but shall dismiss the suit, or remand it to the court from which it was removed, as j ustice may require; and shall make such order as to costs as shall be just, but the order of such circuit court, dismissing or remanding said cause to the state court, shall be reviewable by the supreme court on writ of error, or appeal, as the case my be.”

The act of congress of September 24, 1789, chapter 20, § 11, confers jurisdiction upon United States circuit courts as follows: . “ The United States circuit courts have been vested by statute with original jurisdiction, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, $500, * * * and the suit is between a citizen of the state where the suit is brought and a citizen of another state.”

It is a familiar rule that a decree of a competent tribunal cannot be questioned collaterally. Kinnier v. Kinnier, 45 N. Y., 535; Hunt v. Hunt, 72 id., 217.

The plaintiff in the action in the circuit court of the United States lived in Connecticut; that court had jurisdiction of the parties and subject matter; the action proceeded to judgment. If for any reason a fraud was practiced upon that court, or the proceedings were colorable or collusive, and the action was brought to defeat instead of to further the ends of justice, that court had ample power, on proper application, to grant full relief. The remedy is not by an, action in this court to correct the proceedings of the United States circuit court collaterally.

The allegations in the complaint in the present action, to the effect that the judgment of the circuit'-court was absolutely void, are mere legal conclusions, adding nothing to the inferences deducible from the facts alleged. Sprague v. Parsons, 14 Abb. N. C., 320; Supervisors of Saratoga v. Seabury, 11, id., 468; Price v. Brown et al., 98 N. Y., 388.

The conclusions reached by the trial court were correct, and the judgment must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., concurs; Macomber, J., not sitting.


text:
    The City of Rochester, App’lt, v. Simon V. McDowell et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Bill of fabtioulabs—Official bond.
    Defendants were sureties upon bonds of one D. as city treasurer for two successive terms. In an action on the bonds to recover for D.’s defaults and misappropriations of money during each of said terms, defendants demanded a bill of particulars, which was not furnished, and thereupon an order was made directing plaintiff to furnish a bill of particulars stating the time or times when such defaults and misappropriations occurred, and their amounts. Held, that the order was properly granted; that if plaintiff should show in such bill that it could not state the time or times when the moneys were misappropriated, or the amount misapprppriated at any particular time, this would be a substantial compliance with the order, which, while full and covering the whole ground, was not intended to require an impossibility or prevent the plaintiff from proving its case, if it obeyed the order to the extent of its power.
    Appeal 'from an order of the special term in Monroe county, requiring the service of a bill of particulars.

      Frank J. Hone, for app’lt; Theodore Bacon, for resp’ts.
   Corlett, J.

On the 8th day of March, 1887, the defendant, John A. Davis, was elected treasurer of the city of Rochester for the term of two years, which commenced on the 1st day of April. Davis as principal and the other defendants as sureties executed a bond to the plaintiff in the penal sum of $50,000, the condition of which was in substance that the treasurer would faithfully discharge and perform all the duties of his office.

Davis was elected to succeed himself in March, 1889, and executed, with the same sureties, a like bond.

Davis as treasurer was in default, and misappropriated moneys-in each of his terms of office, and in March, 1890, the plaintiff commenced an action against him and his sureties to recover $60,500 with interest, the amount of the alleged misappropriations.

The complaint contains two counts: The first charged him, in substance, with misappropriating $33,000 during his first term, and the second with misappropriating $27,500 during his second term. Davis never appeared in the action, but the sureties did. The complaint has not been answered, but those appearing demanded a bill of particulars, which the plaintiff did not furnish. The defendants, thereupon, made application upon affidavits to the special term for a bill of particulars, which the plaintiff opposed by affidavits. The special term granted the following order:

“ It is ordered, that within twenty days after service of copy hereof, the plaintiff do deliver to the defendants aforesaid a bill of particulars of the claim of the plaintiff specified in each of the counts of said complaint, showing at what time or times, and in what particulars the said Davis failed to comply with the conditions of each of the said bonds set forth in said complaint, and at what time or times, and in what particulars he failed to perform his duties as such treasurer and the duties imposed upon him by law in respect to the money, property and affairs of said city, and at what time or times and in what particulars he failed to serve the plaintiff well, truly and honestly or faithfully in his capacity as treasurer, or failed to pay over to his successor in office moneys or property belonging to the plaintiff, and at what time or times the said Davis wrongfully took, appropriated or converted any sums of money received by him and belonging to the plaintiff, and what said various sums of money, and each thereof were, and what particular sums of money of the plaintiff, and at what times, the said Davis failed or omitted to turn or pay over to the finance committee of the plaintiff’s common council or its chairman, and that the plaintiff be precluded from giving evidence upon the trial hereof of any of the allegations of said complaint upon the matters and things hereinbefore mentioned, except as specified in such bill of particulars.”

The affidavits upon which the order was granted show in substance that, under the advice of counsel, the defendants cannot answer until furnished with a bill of particulars. The affidavits on the part of the plaintiff tend to show that it was out of its power to furnish more particulars than those appearing in the complaint

Ordinarily, upon demand, a bill of particulars should be furnished, under § 532 of the Code of Civil Procedure. The bill of particulars need contain nothing more than the plaintiff is required to prove at the trial. Matthews v. Hubbard, 47 N. Y., 428.

The order directing the bill of particulars was in the usual form. After the demand was served on the plaintiff, it should have furnished such particulars as it had power, without compelling the defendants to make a motion. The practice is for the party, when requested, to serve a bill of particulars, and if the other party is not satisfied, a motion can be made to compel a further bill. If the plaintiff should show in its bill of particulars that it could not state the time or times when moneys were misappropriated, or the amount or amounts misappropriated at any particular time or times, it would be a substantial compliance with the order, which, while full and covering the whole ground, was not intended to require an impossibility or prevent the plaintiff from proving its case, if it obeyed the order to the extent of its power. It should serve on the defendants all the items required by the order which it has power to furnish. This would inflict neither hardship nor injustice. After the service of such a bill properly verified, the defendant, if so advised, might move for fuller or more specific information. If such application should be made, "the court would be in a position to dispose of the whole question upon the merits according to the ordinary rules of practice ; but if the defendants acquiesced in the bill all controversy on that subject would be ended.

It follows that the order appealed from should be affirmed.

affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Macomber, J., not sitting.


text:
    In the Matter of the Application of The New York, Lackawanna & Western R. R. Co., to appraise lands of Abram Chesebrough et al.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Eminent domain—Bes "adjudicata.
    Where awards made by the appraisers were affirmed on appeal and no new questions of an important character are presented on a subsequent motion to set aside the order appointing such appraisers, but the substantial grounds on which relief is demanded are the same, it will be presumed that the appellate court examined and determined every material question presented by the papers on the former appeals and its decisions thereon considered decisive of the latter motion.
    Appeal from an order of the special term held in Warsaw, denying a motion to set aside an'order appointing commissioners.

      George W Cothran, for app’lts; Franklin D. Locke, for resp’t.
   Corlett, J.

On the 5th day of January, 1882, an award was made in favor of the appellants against the respondent for $8,720’ damages for the taking of certain lands for right of way, belonging to the appellants, for railway purposes.. The report was confirmed in March of the same year, and on the 3d day of April Schultz and wife appealed from the award.

In May, 1886, an application was made upon affidavits to set aside the award, which was denied and an appeal was taken to this court. Several other orders were made at special term denying like motions.

In February, 1889, four appeals were argued in this court, one being to set aside the award, and the other three appeals from orders of the special terms denying applications to set the award aside upon affidavits and other papers. In the April following, the appeal from the award was affirmed; also all the orders appealed from. Ho opinions were written nor do the grounds of the decisions appear iú the case. All those cases were appealed to the court of appeals. The appeals from the orders were dismissed and the one from the award affirmed. After that this motion was made. When the first motion was decided before Justice Daniels at special term be wrote an opinion which appears in the case; also one upon the decision from which' this appeal was taken, which appears.

The appellants received the amount of the award ih June, 1882.

So far as the case shows, no application was made for re-argument in this court, or for leave to renew any of the motions in any of the appeals.

It must be assumed that this court examined and determined every material question presented by the papers in the various appeals decided. If any question or questions were overlooked by the special term, they must have been considered and determined in this court. Error cannot be presumed.

Wo new questions of an important character were presented to the special term on the motion from which this appeal is taken. The numerous affidavits.and papers appearing in the printed case clearly show that the grounds of complaint by the appellants were brought to the attention of the court before Justice Daniels on the first motion; also before Justice Lewis.

The opinion of the special term in the present case is to the effect that no new questions have been presented, and the affidavits so show. It may be assumed, and the justice in bis opinion at special term so states, that the matters involved in this and the former motions are more fully presented and carefully analyzed in the present case than upon the former hearings. But the substantial grounds upon which relief is demanded are the same. Under such circumstances it is evident that the former decisions of this court are decisive of this appeal. The voluminous papers and briefs have been carefully examined, but they fail to show that any new facts, not previously accessible, were presented as the basis of this motion.

The order appealed from must be affirmed.

Dwight, P. J., and Macomrer, J., concur.


text:
    Herman Maeske, Resp’t, v. William S. Smith, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Slander—Damages.
    Defendant accused plaintiff, in the presence of others, of stealing his coal. Held, that these words were slanderous per se, and that a verdict of §100 was not excessive. ■ .
    3. Same.
    The statement of a third person is no excuse or justification for the uttering of slanderous words.
    Appeal from a judgment of the Monroe county court, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Merton E. Lewis, for app’lt; H. B. Hallock, for resp’t
   Corlett, J.

The action was to recover damages for slander, the complaint alleging, in substance, that on the 11th day of February, 1890, in the city of Rochester, the defendant accused the plaintiff of stealing his coal. The answer was a denial and justification

The defendant had two furnaces or heaters in use in two houses, and had a quantity of coal in- the cellar of one of them, used to keep the fire for drying the plaster. The plaintiff was at work for him. The claim of the defendant was, in substance, that he had a large quantity of coal when be left for home on Saturday night, and that on the following Monday morning most of it had disappeared, and that the plaintiff stole it. The jury found the speaking of the words and against the defendant’s contention, and rendered a verdict for the plaintiff of $100. The defendant made a motion for a new trial, which was denied; judgment was entered,. and the defendant appealed from the order and judgment to this court.

The words were slanderous per se. They accused the plaintiff of the commission of . a crime. The jury found the speaking of the words and assessed the damages at the sum above stated.

There is no force in the claim that the damages were excessive; the amount of the verdict was not large.

Slander is a personal injury. Subd. 9, of § 3343 of the Code ■of Civ. Pro.

In such an action the verdict will" not be set aside unless it appears to be the result of passion, partiality, prejudice or corruption. Minick v. City of Troy, 19 Hun, 253; aff'd, 83 N. Y., 514.

There is nothing in the present case to indicate that the jury were influenced by improper considerations. The cause was fairly submitted to the jury by the trial judge, and no exceptions were taken to the charge. The requests to charge were also properly disposed of.

Some exceptions were taken to the rejection of evidence. The defendant was asked the following question: “ Did you have any information from any one as to what became of that coal ? ” This was objected to by the plaintiff’s counsel, and sustained, to which exception was taken. The ruling was proper. The question simply called for the declarations of a third person. The defendant, as a witness, testified that he relied upon information obtained from one Hough. He was then asked : “You believed the statements which were made to you by Mr. Hough as to what he had seen ? ” This evidence, upon objection, was excluded and exception taken. The ruling of the judge was correct. The statement of a third person is no excuse or justification for the utterance of slanderous words.

There were no errors committed in the admission or rejection of ■evidence to the prejudice of the defendant

The judgment and order must be affirmed.

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


author: Childs, J.

text:
    The Citizens’ Bank of Perry, N. Y., Resp’t, v. Helen A. Williams and L. Sophia Williams, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Assignment eor creditors — Partnership — Fraudulent ■ preferences.
    Defendants, as partners, executed an assignment for creditors, in which they directed that, after payment of wages of employes, there be paid to one Clark two promissory notes held by him. It appeared that such notes were given in exchange for notes held by Clark against a former firm of M. 0. Williams & Co., composed of M. C. Williams and the defendant Sophia; that such partnership was dissolved, M. C. Williams agreeing to pay its indebtedness; that he died and defendant Helen is his executrix; that thereafter the defendants formed a partnership and it was agreed that Helen should give to Clark her note, signed by Sophia, as surety, for the indebtedness of the former firm to him and that the notes in question were so given. Held, that the debt to Clark, evidenced by said notes, was in no sense a debt or obligation of the defendants’ firm, but the individual debt of Helen and that its preference was a reservation to the use or benefit of one of the assignors, and rendered the assignment void.
    2. Attachment—Affidavit.
    The statement of such facts in an affidavit for an attachment is sufficient, without a further statement that the transfer was made with intent to defraud creditors, as no other legitimate inference could be drawn from such a state of facts.
    Appeal from an order of the Erie special term denying defendants’ motion, on the papers upon which- the same was granted, to vacate an attachment.
    It is alleged in the affidavits upon which the- attachment was granted, amongst other things, that the defendants, as copartners, under the firm name of Williams & Co., are indebted to the plaintiff in the sum of $2,500, with interest thereon from January 14, 1890, upon a promissory note made by said firm; that on the 31st day of January, 1890, defendants, as such copartners and individually, made, executed and delivered to one Gates a general assignment of all of their copartnership and individual property for the benefit of their creditors; that it is recited in such assignment that the copartnership property consists of a stock of dry goods and store fixtures consisting of' safe, desks, etc., and that said firm is indebted in divers sums of money which they are unable to pay in full or at maturity, and that such assignment, after the payment of the costs and expenses of executing the same and the wages of employees, directs the assignee to pay out of the partnership funds and assets two promissory notes held and owned by E. M. Clark, of Perry, H. Y., one for $100 and interest, and one for $500 and interest; and the affidavit of Clin, the president of plaintiff, concludes as follows:
    “Deponent further says, on information and belief, that the claims of the said E. M. Clark, mentioned in the said assignment, is an individual indebtedness of the said Helen A. Williams to the said E. M. Clark, and that by reason thereof the said firm of Williams & Co. have made a fraudulent assignment of their firm property, and that the assignment by the said Helen A. Williams and L. Sophia Williams of their partnership property in payment of the individual indebtedness of the said Helen A. Wiliams to the said E. M. Clark is in fraud of the rights of this plaintiff, and that the source of deponent’s information and the grounds of his belief is the affidavit of Clarence M. Smith, hereto attached.”
    It is stated in the affidavit of Clarence M. Smith, who was the bookkeeper and confidential adviser of Williams & Co., in substance, that the notes referred to and preferred in said assignment were given to Clark, the payee thereof, in exchange for notes held by him against the copartnership firm of M. C. Williams & Co., which firm was composed of M. C. Williams and the defendant, L. Sophia Williams. That in about the month of March, 1886, said firm of M. C. Williams & Co. was dissolved, the defendant, L. Sophia Williams, retiring, said M. C. Williams assuming and agreeing to pay the indebtedness of said firm of M. 0. Williams & Co. That in June, 1886, and after the dissolution of said firm, said M. 0. Williams died, leaving a last will and testament, in and by which the defendant, Helen A. Williams, was appointed executrix thereof, and made the sole legatee of said deceased. That in September, 1886, the firm of Williams & Co. (aforesaid) consisting of these defendants, was formed, and thereafter it was agreed by and between the defendants that the defendant, Helen A. Williams, should give to said Clark her promissory note, signed by the defendant, L. Sophia Williams, as surety, for the amount of the indebtedness of said firm of M. C. Williams & Co. to him, and that the notes mentioned and prefer red in the assignment of the defendants were given in' the form and for the purpose aforesaid.
    Upon the complaint in the action and the affidavits referred to, the attachment was granted by a justice of this court, which attachment contains the following recital: “ It appearing by the affidavits of Milo II. Clin and Clarence M. Smith, and by the verified complaint in this action * * * that the defendants have assigned their property with intent to defraud their creditors and this plaintiff,” etc., etc.

      Morris A Lovejoy (E. M. Bartlett, of counsel), for resp’t; Owen Harris (B. Frank Dake, of counsel), for app’lts.
   Childs, J.

The debt to Clark, evidenced by the notes preferred in the appellants’ assignment, was in no sense the debt or obligation of the firm of Williams & Co. It was not incurred in the business of the firm or for its benefit, and the firm had not in any manner become obligated to pay it. Durant v. Pierson, 34 N. Y. State Rep., 194.

It was the debt of the firm of M. C. Williams & Co. which, by agreement between the members of that firm, M. C. Williams had obligated himself to pay. Before discharging, this obligation said M. C. Williams died, leaving his entire estate (subject to the payment of his debts) to the appellant, Helen A. Williams, who was in no manner personally liable for the payment of this debt. She, however, elected to retain the estate of her deceased husban'd and to free the same from this Clark debt, by individually assuming and paying the same. Accordingly the notes referred to were made and signed by the said Helen A. Williams, as principal, and by the appellant, L. Sophia Williams, as surety, and in that form delivered to Clark, and the obligation of M. C. Williams & Co. retired. The acceptance by Clark of the notes of a third party was, within all of the cases, under the circumstances, a payment of the firm - debt of M. C. Williams & Co., and discharged the appellant L. Sophia Williams from any liability thereon to Clark, thus leaving Clark in the same situation as though he had made a loan to Helen A. Williams upon the notes; i. e., the holder of the joint and several obligation of the appellants, and as between the appellants leaving Helen A. Williams the principal debtor and L. Sophia her surety, with all the rights pertaining to that relation.

Such being the situation, the question whether the appellants could, in their assignment, devote the firm . property to the payment of this debt, is sharply presented and the affirmative of the proposition strenuously urged by the appellants. As we under.stand the appellants’ claim, it is, not that the firm could, in their assignment, prefer the individual debt of one of the partners, but that both of the partners being liable npon these joint and several obligations, the same might therefore be preferred and paid from the firm property to the exclusion of the firm creditors, and Saunders v. Reilly, 105 N. Y., 12; 6 N. Y. State Rep., 452; and Davis v. President, Managers, etc., D. & H. C. Co., 109 N. Y., 47, 14 N. Y. State Rep., 38, are cited in support of this contention. In Saunders v. Reilly it was held that the title to firm property would pass under a sale upon a joint execution against all the partners, issued upon a judgment recovered for any joint debt whatever, and this conclusion was reached after a careful examination of the principles underlying the law applicable to the rights and obligations of copartners as between themselves and between such firms and their creditors.

Earl, J., who delivered the opinion of the court, at page 19, says: “ After this sale of the firm property upon a joint judgment against both members of the firm, no equity was left in either member of the firm to have the property thereafter applied in discharge of the firm debts. Having been applied in discharge of the joint debt against both members of the firm, all the equities of both members in the property, as against each other, were wiped out; and it is only through the equity which one member of a firm has in the firm property or against his copartners that firm creditors, on the principle of subrogation, can enforce their claims against firm property.” It will be observed from this language of the learned j udge that the decision in that case proceeds upon the ground that the equity of the copartners had been “ wiped out ” by the sale of the partnership assets, and that they were not, as a firm or individually, longer in a situation to dictate the disposition of the same or the application of the proceeds of a sale thereof, and that the equity of the creditors disappeared with that of the copartners ; and this is made still more apparent by the language used by the learned judge at page 17: “A mere general creditor of a firm, having no execution or attachment, has no lien whatever upon the personal assets of. the firm. But when a firm becomes insolvent, and thus it becomes necessary to administer its affairs in insolvency or in a court of equity, then the rule is well settled that firm property must be devoted to firm debts and individual property to the payment of the individual debts of the members of the firm.”

In Case v. Beauregard, 99 U. S., 119, cited with approval in Saunders v. Reilly, Justice Strong, delivering the opinion of the court, in discussing the same proposition, uses this language: But so long as the equity of the partner remains in him, so long as he retains an interest in the firm assets as a partner, a court of equity will allow the creditors of a firm to avail themselves of his equity,^ and enforce, through it, the application of those assets primarily to the payment of the debts due them, whenever the property comes under its administration.”

To the same effect is Fitzpatrick v. Flannagan, 106 U. 648. Davis v. President, etc., supra, follows Saunders v. Reilly, and establishes no different principle. It thus appears that the facts in Saunders v. Reilly differ so widely from the facts in the case at bar as to deprive that case of weight as an authority favorable to-the appellants’ contention here.

The rule established by the authorities is that where the property of a firm has been actually applied to the payment of a debt, for the payment of which each member of the firm was bound, the equity of the individual partners to have the same applied to the payment of the firm debts is wiped out, and with it the right of a creditor of the firm to insist upon such application. But in case of the insolvency of a firm, and the necessity arising for administering its affairs in insolvency, or in a court of equity, the firm property must be devoted to the payment of firm debts. In this case we are dealing with the voluntary acts of the debtors who have sought, through the intervention of a trustee, to apply the firm property to the payment of a debt which does not belong to the firm to pay. They were insolvent, and have brought the partnership assets into court for distribution. The appellant L. Sophia Williams had the right, her equity not having been extinguished by a sale of the firm property to satisfy a debt, to insist that this debt be paid by Helen A. Williams from her individual property, and, as we have shown, the creditors of the firm are entitled to be subrogated to that right. It follows that such preference is in nature a reservation to the use or benefit of one of the assignors, and, we think, within the condemnation of the law, and that the assignment containing the same is thereby rendered fraudulent and void, Wilson v. Robertson, 21 N. Y., 587; Menagh v. Whitwell et al., 52 id., 146; Bulger v. Rosa, 119 id., 459-465; 29 N. Y. State Rep., 678, and that any other conclusion upon the facts here presented would bring the case of Saunders v. Peilly into irreconcilable conflict with Wilson v. Robertson, which has not been questioned in any later case, and which we are required to follow in disposing of the question now under consideration.

It is, however, contended by the appellant that- the affidavits upon which the attachment was granted contain no proof of an intent on their part to defraud their creditors, and, therefore, the judge was without jurisdiction to grant the same.

The Code of Civil Procedure, omitting provisions not important to be considered here, § 636, provides as follows, “ To entitle the plaintiff to such warrant he must show by affidavit to the satisfaction of the judge granting the same, as follows: * * * that the defendant * * * has assigned, disposed of, or secreted,. or is about to assign, dispose of, or secrete property * * * with intent to defraud his creditors.”

In considering the purpose of the legislature in enacting this statute we cannot express our views more clearly than to quote from the appellants’ brief as follows:

“ The legislature intended by the provisions of the statute with reference to attachments, to allow them on the ground of fraud in those cases and in those cases only where the debtor has so. disposed of his property or manifested an intent to make that disposition of his property which will defeat the application of it which the law adjudges should be made.” As we have seen, the affidavits upon which the attachment was granted establish every fact necessary to bring the case within the appellants’ definition or enumeration of the facts necessary to make such a case as was intended to be reached and provided for by the statute. It may be conceded that the affidavits necessary to support an attachment upon the ground herein alleged must contain proof to the satisfaction of the judge of an intent on the part of the defendant to defraud his creditors. It is a similar principle which may have its application here, that a person is presumed to intend the natural and legal consequences of his act, Webb v. Daggett, 2 Barb., 9; hence, when the appellants attempted to make such a disposition of their firm property as was fraudulent and void as to their creditors, and so denounced by the law, it must be presumed that they intended the fraud which would be accomplished by the consummation of the act, and proof of the facts would prove the intent, as no other legitimate inference could be drawn from such a state of facts. 1STothing would be added to the force of the affidavit by a statement on the ¡lart of the affiant that the transfer complained of was made with the intent to defraud creditors, for it would still remain for the judge to be satisfied from the evidence presented in the affidavit that the intent existed.

In this case the judge who granted the attachment has passed upon this evidence and determined, in his order, “ that the defendants have assigned their property with intent to defraud their creditors and this plaintiff,” and we think such determination was upon sufficient evidence and ought not to be disturbed. Any other conclusion, in view of the disinclination of debtors to disclose their fraudulent intent, save by their act, would substantially deprive the creditor class of the protection of the statute which was manifestly enacted for their benefit. These views seem to be well supported by authority. In Wilson v. Robertson, swpra, in considering a preference in all respects the same as we have determined the preference in this case to be, Wright, J., at page 591, says: “ It seems very plain that the insertion of such a provision in an assignment of the partnership effects of an insolvent firm is a violation of the statute in respect to fraudulent conveyances, and furnishes conclusive evidence of a fraudulent intent on the part of the assignors. Its operation, in this case, was not only to hinder and delay the plaintiffs, as creditors of the firm, but, if successful, to cheat them out of their entire demand.”

And, again, at page 593: The firm of Staples was not liable in any way to the private creditors of Crocker; and the attempt to assign partnership property to pay the private debts of one of the partners, when the firm was insolvent, affords a conclusive presumption of an actual fraudulent design on the part of the assignors.”

In Collomb v. Caldwell, 16 N. Y., 484, Comstock, J., in discussing a similar question, says, at page 485: “We by no means called in question the doctrine that an assignment by an insolvent is void for actual fraud, if, while he provides for only a part of his creditors, he makes the attempt in the instrument to reserve any portion of the fund to himself; such an attempt has been regarded as establishing what is sometimes termed‘fraud in law,’ but more accurately speaking, it affords a conclusive presumption of an actual fraudulent design on the part of the assignor.”

In Bulger v. Rosa, 119 N. Y., 465; 29 N. Y. State Rep., 678, it was held that a similar preference would be a fraud under the statute of Elizabeth. These cases not only support the conclusion we have reached, but determine the value of the evidence upon which this attachment was granted, and pronounce it conclusive;

This question has been discussed and determined in this court in several reported cases, of which it is only necessary to cite Vietor v. Henlein. 34 Hun, 562: The case of Shotwell v. Nicollet Nat. Bk., 45 N. W. Reporter, 842, cited by appellants, does not seem to be in point on this question. In that case the sole question was whether the findings of fact by the court, upon the evidence taken by a referee, amounted to a finding of a fraudulent concealment, etc., of property with intent to cheat and defraud creditors. In considering that question the court made some observations in regard to what constituted a fraudulent concealment of property under the statutes of Minnesota, which, so far as they have any application to the case at bar, are in line with the views herein expressed. We have examined the other cases cited by appellants in support of their contention, but do not deem it necessary to review the same at length. It is only necessary to say that we do not regard them as tending to establish any different rule than that laid down in the cases referred to.

The conclusions we have reached are, necessarily, based upon the affidavits on which the attachment was granted; the facts therein stated may, upon the trial of this action, be so far explained or disproved as to wholly change the rights of the parties as herein' determined, in disposing of this appeal. Whatever that result may be, for the reasons stated, we think the attachment was properly granted, and that the court properly denied the appellants’ motion to vacate the same.

The order appealed from should be affirmed, with ten dollars costs and the disbursements on this appeal.

Dwight, P. J., and Corlett, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of Opening One Hundred and Eighty First Street.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Eminent domain—Lands taken for streets—Modification of order CONFIRMING REPORT.
    An order confirming the report of commissioners of estimate and assessment in street opening cases is a judgment of the court, and in a proper case the court has power to modify the same.-
    2. Same—Relief of property owner.
    Where it appears that no award was made for land taken for the street which belonged to an owner who failed to appear before the commissioners, the court may properly, on motion of such property owner, open the order of confirmation so far as to allow the presentation of a claim for an award for such land, hut on condition that the claim shall he limited to the value of the land at the time of the original assessment, and not include improvements since made.
    Appeal from order partially opening order confirming the report of commissioners.

      James A. Jeering and Walter S. Logan, for app’lts; Peter B. Olney and D. J. Dean, for resp’t.
   Van Brunt, P. J.

The papers upon appeal in this case show a clear mistake in reference to the failure to make an award for the land of the appellant Fitzgerald taken for the opening of this street; and that in some form she should have redress seems to be apparent. It is unjust, however, because of this mistake, in which she participated, that she should be placed in a better position than she would have occupied had she appeared before the commission at the time they were assessing the value of the property to be taken and presented her claim.

There is no question of fact upon either side and it is apparent that the land of the appellant should not be taken without compensation.

As an insuperable objection it is urged upon the part of the appellants that the order cannot be partially set aside; but that if any relief whatever is granted the whole proceeding confirming the assessment must he vacated.

Although there is some force in this objection, yet as an order confirming a report of commissioners of estimate and assessment is a judgment of the court, we see no reason why in a proper case the ordinary power of the court to modify its decrees should not be possessed by the court awarding this judgment.

It is further claimed upon the part of the. appellants that relief should'not be granted to Fitzgerald, because the granting of such relief would operate as an injustice to them, in that the property taken for this improvement since the original proceedings were instituted and the original appraisals made has increased in value and for such increase the assessment must be levied upon them, which they would not have been required to pay had the mistake not occurred. And they claim that they should not be called upon to suffer by reason of the error by which no award was made to the respondent Fitzgerald.

We think this position is well taken, and that they should not he compelled to pay for the land of the respondent at an advance if it has risen in value since the time at which its value would have been assessed had it been regularly considered in the proceedings for condemnation. The respondent, applying to the court, as she is, for a favor, as a condition of the granting of that favor should be compelled to protect the rights of th'e persons who will be assessed in these proceedings for the land of the respondent Fitzgerald which has been taken.

We think, therefore, that the order appealed from should be modified so as to compel the respondent Fitzgerald as a condition of granting her relief to stipulate to claim before the commissioners only the value of her land as it existed at the time of the original assessment, and not its value at the present time; and as thus modified the order should be affirmed, without costs. Daniels and Beady, JJ., concur.


text:
    In the Matter of The Southern Boulevard Railroad Company.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Eminent domain—Statutes—Power of legislature to alter.
    The legislature, after having authorized the taking for public use of property upon certain conditions, cannot abolish those conditions and treat the property as though in the first proceeding no conditions whatever had been attached to its condemnation.
    2. Same—Southern Boulevard—Laws 1867, chap. 290.
    By the act authorizing the construction of the Southern Boulevard, it was provided that no railroad should be constructed thereon without a special act, and in case the legislature should grant such right, nothing in the act should be construed to cut ofE the rights of the owners of the land to claim and recover the full value of the land to the same extent as if the boulevard had never been laid out on such lands. In 1887 this act was amended so that the section provided that no railroad should be constructed thereon except by a railroad organized under chap. 252, Laws 1884, and which has complied with the provisions of said chapter in respect of the consent of owners of property and the local authorities, and omitting the conditions aforesaid. Held, that the provisions of the act of 1867 for the protection, of the owners of property taken or assessed for the boulevard constituted a contract between the owners and the state, which the legislature had no power by subsequent action to impair, and upon condemnation by a railroad the owners are entitled to receive the actual value of their land, as though no street had ever been opened.
    Appeal from order of the special term confirming report of the commissioners appointed under the general railroad act.

      W. P. Williams, for app’lt; John N. Lewis, for resp’t.
   Van Brunt, P. J.

In 1867 the legislature passed an- act to authorize the towns of Morrisania and West Farms to widen, make, extend and improve a highway in said towns, to be called the Southern Boulevard, and by the act commissioners were appointed, with power, to perform the several acts and duties therein prescribed. Amongst other things, it was provided in said act as follows:

Section 24. Said road when constructed shall be' kept and maintained for the public use as an avenue and boulevard, and except for the purpose of crossing the same, no railway or tramway shall be laid or constructed thereon, or upon any part thereof, by any persons or corporations whatsoever, without a special act of the legislature of this state for that purpose first had and obtained; and in case the legislature of this state shall, at any future time, grant to any person or corporation the right to construct any rail or tramway upon said road or any part thereof, nothing in this act contained shall be construed to affect or cut off the rights of the several owners of lands, which shall be taken for laying out the road hereby authorized, to claim and recover from such person or corporation the full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from, the construction of such rail or tramway.

The proposed boulevard was laid out pursuant to the authority of that act, and commissioners of estimate and assessment were appointed for the assessment of damages and benefit, whose report was duly confirmed and the said boulevard duly opened.

In the year 1887, the legislature amended the act of 1867, by making § 24 of that act read as follows:

“ Said road, when constructed, shall be kept and maintained for the public use as an avenue and boulevard, and no railway' or tramway shall be laid or constructed thereon except by a railroad company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter 252 of the Laws of 1884, and which has heretofore complied or shall comply with all the provisions of said chapter in respect of the consent of owners of property and the local authorities.”

The Southern Boulevard Railroad Company, organized under the act of 1884, began these proceedings to acquire the right to lay and operate its road upon the said boulevard. Commissioners were appointed who made simply a nominal award; apparently having based their award upon the provisions of § 24 as amended in 1887, and not as originally enacted.

From this award the appellants, who were owners of property taken for the opening of the boulevard, appeal, and the question presented seems to be whether the legislature after having authorized the taking for public use of property upon certain conditions, can abolish those conditions and treat the property as though in the' first proceeding no conditions whatever had been attached to its condemnation.

We think that this cannot be done. The provisions for the protection of the owners of property taken or assessed for the opening of the boulevard constituted a contract between such owners and the people of the state of Mew York which the legislature had no power by its subsequent action to impair.

Undoubtedly the awards made as compensation for the property taken were affected by the provisions contained in the act of 1867, whereby in case (as had frequently been done) the street was to be prostituted to the uses of a private corporation, the owners should receive full indemnification for the taking of their property as though the proceedings for opening it as a highway had never been taken.

This was the offer which the legislature made to the owners of the property. This was the offer which they accepted, and the legislature had no power to recede from this bargain after it had been consummated by the opening of the street in accordance with the terms of the act in question.

It is urged that this construction affirms the proposition that one legislature has the power to bind a subsequent legislature by a provision which would prohibit a new inquiry into the subject matter and new legislation, a proposition which needs but to be stated to be condemned and which has been specially repudiated by the court in this department in reference to this very statute of 1867. Harlem Bridge, M. & F. R. Co. v. Southern Boulevard, etc., Co., 41 Hun, 553; 3 N. Y. State Rep., 316.

An examination of the case cited shows that it has no applicability whatever to the question involved upon this appeal. All that was intimated in that case, a point which it was not necessary to decide, was that the legislature could repeal the act of 1867. There is no question but that it could so repeal that act and if it did so the'lands occupied by the Southern Boulevard would at once revert to their owners; but the legislature has no power to repeal that part of the act whereby as an inducement to the owners of land to permit the improvement it covenanted for their protection. The legislature authorized the people to take the land under certain conditions and the people cannot hold the land in disregard of those conditions. Neither can this private corporation come in and claim this property in condemnation proceedings without due regard to the conditions under which it was in the first instance devoted to public use.

We think that by the terms of the act of 1867 a contract was entered into between the people of the state and the owners of this property that after this improvement was made and paid for by the adjacent owners no railroad company should be permitted to seize upon this avenue without compensating the owners for their property so taken.

We think, therefore, under the circumstances, that the owners of this property were entitled to more than a nominal award and that they were entitled to receive the actual value of the land as though no street had ever been opened.

The order should be reversed and the proceedings sent back to the commissioners for further examination, with costs to the appellant to abide the final event

Daniels and Brady, JJ., concur.


author: Brady, J. Van Brunt, P., J. (dissenting.)

text:
    Augusta C. Genet, App’lt, v. The Prest., Etc., of the D. & H. C. Co., Respt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Lease—Of coal lands—Construction of.
    In a lease of coal lands it was provided that the lessee should pay for the coal mined and taken out a certain price per ton “of clear merchantable coal, exclusive of culm or mine waste that will pass through a mesh of one-half inch square.” At the time of making the lease the sizes of coal known as birdseye and buckwheat were considered worthless and were-included in the term culm, but since 1880 they have been dealt in and sold by the lessee. Held, that under the terms of this lease whenever coal is taken from the land it must be paid for, whether it is the result of a new process, with regard to culm or not; that while on a strict construction of the agreement the lessee would be under no obligation to utilize the culm, yet having done so the product became a part of the subject matter of the contract and gave the lessor the right to insist upon such compensation as might be awarded therefor, if the royalty provided for by the agreement had no application.
    (Van Brunt, P. J., dissents.)

      Appeal from judgment entered on'report of a referee.

      G. C. Genet, for app’lt; F. E. Smith, for resp’t.
   Brady, J.

The judgment appealed from is twofold :

First. A money judgment in favor of the plaintiff for $4,947.21, and

Second. A judgment dismissing one cause of action upon the merits. If, upon a consideration of the whole case, therefore, the judgment dismissing the cause of action suggested is erroneous, there must be a new trial without reference to the exceptions relating to other parts of the case.

The basis of the action is an agreement between the parties by which certain coal lands in the state of Pennslyvania were leased to the defendants, one of the terms of which required the defendant to pay twelve and one-half cents for each ton of clean and merchantable coal, exclusive of culm or mine waste, to be passed, through a mesh of one-half square inch.

The first cause of action, after referring to the agreement, mentioned the working of the mine and the rendering of accounts, alleges that the defendant in preparing the coal for market used a mesh five-eighths of an inch square instead of half an inch square, as required by the agreement, and that, as a result, ten per cent of all the coal mined, or 80,000 tons, had passed through a five-eighths mesh which would have gone over a half inch mesh, and this amount was omitted from the account.

The second cause of action alleges the preparation by the defendant of what is known as pea coal by screening what goes through a five-eighths mesh over a mesh of seven-sixteenths of an. inch, and seeks to recover the stipulated royalty on the whole of the pea coal taken from the mine in question and claimed h> amount to 150,000 tons.

The third cause of action alleges that the coal, after the preparation of the pea coal, is again screened by defendant and separated into two other grades of coal called buckwheat and. birdseye, and that such coal to the amount of 100,000 tons had been taken and carried away by the defendant, the value of which, was $25,000, which sum was claimed.

The fourth cause of action was a charge that the defendant had mined and taken from the land in question at least 1,200,000 tons of coal, but had paid off for less than half that amount, and that the accounts rendered by the defendant were false. The prayer for judgment was for a general accounting for the value of all coal mined; for the value of the small coal that would pass through a half-inch mesh, that is, all pea coal and all buckwheat and birdseye coal; for damages to the amount of $10,000 caused by re-crushing the coal and reducing the same to dust or culm, and for general relief.

In reference to these different sorts of coal the referee found that the various sizes or grades in which anthracite coal is placed upon the market are called lump, steamboat, grate, egg, stove, chestnut, pea, buckwheat and birdseye, and these sizes, with the exception of pea, buckwheat and birdseye, were substantially the same as those in which anthracite coal had been placed upon the market for more than forty years; and that the sizes of coal now called pea, buckwheat and birdseye were formerly considered worthless, and were included in the other waste products of the mine under the name of culm; that the size now called pea was first separated from the culm and put on the market about 1857, but did not become one of the sizes commonly dealt in until about 1865 or later, while buckwheat and birdseye have been so separated and sold only since about 1880.

As will have been observed, the third cause of action related to the size just mentioned, and which was dismissed upon the trial.

The question which presents itself in limine is whether the dismissal of that cause of action was erroneous or not. The agreement was made on the 28th of March, 1864, and contains the following:

“ And the said party of the second part agree to pay for the coal mined and taken out in pursuance of this agreement at the rate of twelve and a half cents (12-|-) for every ton of (2,240) twenty - two hundred and forty pounds of clear merchantable coal, exclusive of culm or mine waste that will pass through a mesh of one-half inch square.”

At that time, as found by the referee, the sizes now -called pea, buckwheat and birdseye were considered worthless, and were included in the other waste products of the mine under the name of culm.

It is quite apparent that the language of the agreement to which particular attention has been called, “ exclusive of culm or mine waste,” was adopted with reference to the then supposed worthlessness of that product of the mine. And it is equally evident from an interpretation of the whole instrument that there was no intention on the part of the plaintiff to convey to the defendant any beneficial result of mining operations as a gratuity; nor is there any ground for the defendant to claim the right thereunder to appropriate the same to its own advantage without due compensation. The manifest design of the agreement was to authorize the defendant to conduct such mining operations as would develop a marketable article for which a marketable compensation was to he paid. It was thereby made the duty of the defendant to pay for all coal mined and taken out in pursuance of the agreement, exclusive of culm or mine waste; so exclusive because it was supposed to possess no marketable quality and indeed had none, as already suggested, until 1865 and subsequent to the making of the agreement between the parties.

It makes no difference whether the agreement makes the defendant the absolute owner of the coal as if by deed in fee simple, or a lessee with rights and privileges in reference to the mineral found upon or under the surface, inasmuch as the mining •of the coal involved the payment, for its appropriation, of a royalty agreed upon by the parties.

It would be absurd to hold that under such an agreement, no matter how it may be designated in legal parlance, the coal was transferred unqualifiedly, and it is not at all likely that any court of justice will so adjudicate.

Whenever coal is taken from the land embraced within the agreement it must be paid for, whether it is the result of a new process with regard to culm or not

It is true that the defendant under a strict construction of the agreement would be under no obligation to utilize the culm ; but having done so the product became a part of the subject matter of the contract and gave the plaintiff the right to insist upon such compensation as might be awarded, if the royalty provided for by the agreement had no application. But even if this be not so, the utilization by the defendant of the culm in which he had no property and as to which the agreement gave him no rights, and which was in fact owned by the plaintiff, created an independent cause of action which could be enforced herein, but which was disregarded by the referee, and it is thought erroneously.

The record in this case has been the subject of many examinations with its numerous exceptions and complications, but the recurrent thought has been that the exclusion of the third cause of action was improper, and deliberate consideration of that proposition has led to the conclusion herein stated, a conclusion which renders it entirely unnecessary to consider any of the other exceptions presented on behalf of the plaintiff.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event

Daniels, J., concurs.

Van Brunt, P., J. (dissenting.)

I dissent from the conclusions of Mr. Justice Brady and concurred in by Mr. Justice Daniels. The coal lands were leased to the defendants for mining purposes.' The rent was fixed upon the basis of a payment of 12J cents for every ton of merchantable coal which would pass through a mesh one-half inch square. This evidence showed that this necessarily excluded buckwheat and birdseye coal. It is evident that all the coal mined by the defendants belonged to them, and if they found after the execution of the lease that they could make use of what they previously had been compelled to throw away, I see no basis arising from this fact for a .change in the standard by which the rent is to be measured. The parties fixed the method of determining the rent and the court cannot now alter the contract


author: Van Brunt, P. J.,

text:
    Hannah Cohen et al., Adm’rs, Resp’ts, v. The Mayor, etc., of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Appeal—Record.
    Where the record on appeal contains no valid exception, and no order denying a motion for a new trial, and no appeal from such an order, there is nothing presented for the appellate court to review.
    Appeal from judgment entered upon the verdict of a jury.
    The action was brought to recover damages for the injuries sustained by the next of kin of Pischel Cohen, plaintiff's intestate, by reason of his death, which is alleged to have been caused by defendant’s negligence.

      John J. Delany, for appl’t; Francis B. Chedsey, for resp’ts.

       See 23 N. Y. State Rep., 509.

   Van Brunt, P. J.,

This is the second time that this action has been before this court upon appeal. It has been to the court of appeals, where it was held upon the same state of facts established by the evidence in this case that the plaintiff was entitled to go to the jury upon the question of her right to recover.

The record contains no valid exception and no order denying a motion for a new trial and no appeal from such an order.

There is, consequently, nothing for this court to review, and the judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ., concur.


text:
    John Whalen, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)
    1. Negligence—Railroad crossings—Contributory.
    Plaintiff was injured by being struck by an engine while crossing defendant’s tracks, driving an ice wagon. It appeared that he was familiar with the locality; that there was a cut in the rock on the north side of the street and trains in such cut could not be seen after passing a point 100 feet from the tracks until the tracks were reached; that plaintiff was driving on a jog, and did not stop before crossing the tracks nor look up or down after he reached them. Beld, that he was guilty of contributory negligence and could not recover.
    2. Same—Flagmen.
    Plaintiff testified that he had seen flagmen at that point at times. Beld, that this showed that he knew that it was not the habit to keep a flagman there, and the absence of a flagman under such circumstances offered no invitation to him to cross without using ordinary precautions.
    Appeal from judgment entered on dismissal of complaint after trial at circuit.

      M. J. Keogh, for app’lt; F. Loomis, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for personal injuries sustained by the plaintiff because of the negligence of the defendant

Upon the trial the complaint was dismissed apparently on the ground of the contributory negligence of the plaintiff.

It appears from the evidence that the defendant is engaged in operating the Hew York Central & Hudson Eiver Eailroad and that on the 27th of May, 1887, the plaintiff was driving an ice wagon drawn by two horses along Two Hundred and Sixth street, and while traveling that part which is crossed by the tracks of the railway was struck by defendant’s engine and injured.

It further appeared that the plaintiff was going to deliver ice to a customer whose store was on the west side of the track and the plaintiff was obliged to cross the track to get to the store to deliver ice. The' street through which he was traveling descends to the track at a steep incline running east and west and the defendant’s tracks north and south. On the northerly side of the street there is a cut in the rock and trains in this cut are not visible to persons coming down the incline, and the defendant’s trains passing through’ this cut could not be seen for any great distance on account of the embankments except from a point 100 feet east of the east rail of the easterly track, so that after a person passed that point there was no view along the tracks until the tracks themselves were reached.

The plaintiff swore that he had delivered ice at this store many times and that he has before at times seen a flagman where this street crossed the track; that there was no flagman at the crossing at the time of the accident and as he approached the track he was on the outlook for all signals and did not know anything until he was struck by the train. It further appears from his evidence that he was driving his horses upon a jog, not exactly a trot, faster than a walk, and had a big ice wagon; that he did not hear anything; that he was on the track before he saw the trains, and that he neither stopped before crossing the tracks, nor did he look up or down after he got to the tracks, but that he looked straight ahead and went straight ahead. It further appears, from the construction of his wagon, that without making some effort it was impossible for, him to look other than straight ahead, and that the first that he noticed the train the horses were across the west track and the next instant the plaintiff was hit. In another place he says the first he saw of' the train was when the horses were between the rails of the track. This evidently refers to the rails of the west track, he having crossed the east track and having got at the west track before the accident occurred.

It seems to us that here was conclusive evidence of contributory negligence. Conceding that until plaintiff reached the track it was impossible for him to see an approaching train, yet he was bound, after he got to the tracks and in a position where he could see, to look up and down as far as he was able. This he utterly failed to do, or to make any use of his eyes whatever, looking ’ straight ahead. It is clear that if, after he got beyond the cut, he had looked to see whether any trains were approaching, he could have seen them. But he took no such precaution. He took the risk and the accident was the result.

It is claimed because he saw no flagman there, and because he had before seen a flagman there, he had a right to assume that the passage was clear. But the difficulty is that he had not habitually seen a flagman there.

He testified that he had seen a flagman there at times, and, therefore, he knew that it was not the habit to keep a flagman there, and the absence of the flagman under such circumstances offered 'no invitation to him to cross the track without using ordinary precautions.

It is claimed that the case of Kellogg v. N. Y. C. & H. R. R. R Co., 79 N. Y., 72, is almost identical with the case at bar. An examination, however, shows a very material difference between that case and the case at bar. The deceased approached the track in a one horse wagon, he was driving on a slight trot with one hand, and holding a pail of butter in the other; that he was familiar with the locality, living near the crossing, and that he approached it when trains were due from both north and south; the wind was blowing from the north. The deceased was seen a moment before he was struck, looking towards the north from which a train was then due; that the train approaching from the south struck and killed him. It yras claimed that if he had looked towards the south he would have escaped harm. A verdict for the plaintiff was set aside by the general term, on the ground that the complaint should have been dismissed because of the contributory negligence of the deceased. The court of appeals held this was error upon the ground that it was not proved that he was heedless; that the evidence showed that the deceased was apparently aware of the danger, and that a train was at that time to be expected from the north, and there was also some obstruction interfering with sight in that direction. For a moment before the collision he was looking in that direction, and the court say: “We cannot say that at that particular time he should have looked toward the south.” And under all the circumstances the court thought that it was for the jury to determine whether he exercised that care which the law required of him.

In the case at bar the evidence absolutely fails to show the slightest attempt upon the part of the plaintiff to ascertain whether any trains were approaching, but-he looked straight ahead, and his view straight ahead was limited by the construction of his wagon. He drove across the track heedlessly, taking no precaution whatever to look oat for passing trains.

The facts are, therefore, essentially different from those of the Kellogg case, and as the burden of proof is upon the plaintiff to show that he was not guilty of contributory negligence, there was no evidence from which a jury could infer that he had not been so guilty. The court was, therefore, right in dismissing the complaint, and the judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Brady, J.

text:
    In the Matter of the Last Will, etc., of Augustus Zerega, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Will—Residence.
    A man may reside where he chooses, and although by a quasi fiction of the law he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for himself, and where that is in this state his residence as described for the appropriation of his estate by the legal processes provided by law, is where that is situate.
    2. Same—Pkobate—Jubisdictioh.
    It appeared that testator claimed his residence in Westchester county; that he voted and paid taxes there, and when he expressed a wish to sell his residence there it was coupled with a statement that he might travel. Reid, t'.at his residence was in that county, although he spent the winters with his daughter in New York, and that the surrogate of New Yorkhad no jurisdiction of proceedings to probate his will, and that the consent of the parties interested in the estate and the acceptance of letters by the executors conferred no jurisdiction.

      Appeal from order of the surrogate denying application to revoke probate of will.

      A. Gallup, for app’lt; DeWitt, Lockman & DeWitt, Samuel Huntington and Horace Barnard, for other parties.
   Brady, J.

This application, so far as it charges Mr. Barnard with misrepresentations, is not sustained. The facts and circumstances disclosed and duly considered justify this conclusion. It is not deemed at all necessary to state them in detail.

The proposition that Mr. Zerega at the time of his death was a resident of the city of Hew York has not been sustained, however, but, on the contrary, has been successfully assailed. He had a temporary abode here, it is true, but it was in a house occupied by his daughter, for whose use it seems to have been purchased at the time of her marriage.

He paid for his accommodation therein while he remained in it, which was during the interval between his departure from his residence in Westchester in the fall of the year and the following spring, a mode of life adopted and kept up for many years prior to his death. The testimony of disinterested persons of his admissions and declarations in regard to his residence establishes the conclusion that he considered himself to be a resident of Westchester, and so described himself in his will; and this necessarily went hand in hand with his intention to be such a resident, and made him such by act and expressed intent.

In addition to this he voted and paid taxes there, and when he expressed his wish to sell his residence there it was coupled with a statement of an object in view, namely, that he might travel, but not to return to a city residence here, and indeed not making any reference to it

This indicated a wish to change his mode of life, and to be relieved from a local habitation.

When the residence is thus adopted and proclaimed, especially in connection with an existing domicil, it is not necessary to seek the aid of adjudications bearing upon the much distorted questions of residence and domicil, and the difference between them for certain purposes, taxation and the like. A man may reside where he chooses, and although by a quasi fiction of the law he may be located in different places for public purposes, such as taxation and the like, yet his home he determines for himself, and where that is in this state, his residence as described for the appropriation of his estate by the legal processes provided by law is where that is situate. The Code gives ho jurisdiction to the surrogate of this county in such a case.

It is true that the parties interested in the estate gave consent to the probate, and that the executors accepted letters testamentary based upon it; but this did not confer jurisdiction, and is therefore of no avail. The standing in court of these persons is such that if the probate could be upheld, it should not be interfered with on their application, whether the motive which induced the application was made in good faith or otherwise.

The surrogate proceeded upon papers regular upon their face,, and containing all the requisite jurisdictional facts under the provisions of the Code, §§ 2474r-2476, and the estate could be administered in all respects as well under his authority as that of any other. But the question of jurisdiction is always a factor ■of great and continuing importance in courts of justice, and its -absence may be successfully resorted to as a destructive negation.

The order appealed from must be reversed, but without costs.

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