author: Per Curiam.

text:
    In the Matter of the Application of The Board of Rapid Transit Railroad Commissioners.

      (Supreme Court, General Term, First Department,

      Filed July 7, 1892.)

    1. Railroad—Rapid transit—Powers op commissioners.
    The commissioners appointed pursuant to § 5 of chap. 4, Laws 1891, to determine whether the routes presented by the rapid transit commissioners ought to be constructed and operated, are not restricted in their action to the evidence produced before them in relation thereto, but have a right to examine the question for themselves, to see the situation and to be guided by their own judgment as well as.by such evidence in arriving at a determination.
    2. Same—Alteration op plan.
    As the act only requires that a general plan shall be adopted before the consents of the property owners shall be obtained, the provisions of § 14 allowing alterations in the detailed plan do not render the statute invalid as depriving the owners of their property without due process of law, or burdening it with a road of a character not contemplated or consented to by the owners.
    8. Same—Consequential damages.
    _ A claim that the act does not secure abutting owners against consequential damages does not affect the validity of the legislation, as the act gives the property owners ample remedies for any injuries which they may suffer.
    4. Same—Removal op soil.
    Nor is it a valid objection to the act that no provision is made for compensation for the soil which is taken out of the street. Whatever portion of the streets occupied by the soil is needed for its improvement for public use. the legislature, through the proper authorities, has the right to appropriate.
    . 5. Same—Abandonment op portion op route.
    The proceeding is not affected by the fact that the commissioners reject some of the routes presented and adopt others, so long as one complete route is adopted.
    Motion to confirm the report of commissioners.

      Prescott H. Butler, for Sarah A. Borell et al.; S. P. Nash, for Trinity Church Corporation; H. H. Man, for the executors of Thomas Lewis; Berry Brothers, for the National Park Bank;
      James M. Fisk, for the Terminal Underground Railroad Co.; S. Riker, for the Trustees of Sailors Snug Harbor; B. C. Wetmore, for C. H. Contoit; J. Thomson, for Park Ave. property owners; O. B. Potter and Mr. Irwin, for Elliott F. Shepherd; Lawson A. Fuller, for the Washington Heights Property Owners' Association; Franklin Bartlett, for Henry Mason et al.; John M. Bowers, for the Commissioners.
   Per Curiam.

—The court having heretofore appointed, pursuant to the provisions of § 5 of chap. 4 of the Laws of 1891, three commissioners to determine whether the routes presented by the rapid transit commissioners appointed pursuant to said act ought to be constructed and operated, and said commissioners having, after a public hearing of all parties interested, made a report that certain portions of such routes ought to be constructed and operated, this motion is now made to confirm said report.

Various parties, owners of property which it is claimed would be affected adversely by the construction of the road proposed, appeared and objected to the confirmation of said report upon various grounds. Many of these objections were considered and passed upon at the time of the original application for the appointment of commissioners by the property owners who then appeared, being with but a single exception different from those who appeared and object upon this application.

It will not be necessary in the disposition of this motion to reconsider the objections now raised that were then disposed of, viz.: that the plan and scheme adopted by the rapid transit commissioners were so indefinite that the property owners could not act intelligently in the giving or refusing of their consent

Various other objections are now raised for the first time, although the condition of the problem remains the same as it did upon the original application.

It seems to be claimed upon the part of some of the objectors, that the commissioners appointed by this court were only empowered to act upon evidence which might be produced before them in favor of, and in opposition to, the proposed scheme. We think that this is altogether too restricted a view of the powers of these commissioners, and that they had a right independently to examine the question for themselves, to see the situation, and to "be guided in the conclusion at which they arrived, as well by their own judgment, as by evidence which might be produced before them. And this is especially the case in view of the fact that all the evidence which could possibly be produced must necessarily be in the nature of opinions, and not the asseveration of facts within the knowledge of the witnesses. It is a well recognized fact that in cases of great public improvements, the public at large, being interested, and to be benefited thereby, take little or no active interest in the furtherance of the work, whereas the individual who fancies he sees injury to his property in the carrying out of the work is diligent before the public authorities in presenting his objections. Therefore, if the commissioners had to depend entirely upon the public, who are really interested in the work, to present the claims of the enterprise in the shape of evidence which could be acted upon, theit reliance would indeed be upon a broken reed, because what is everybody’s business is nobody’s business, and is never done. It is clearly within the contemplation of the legislature in respect to this subject, that the commissioners appointed to act in these matters shall be governed by their own judgment, as that judgment may be affected by the evidence and arguments presented to them. The fact of the necessity of increased facilities of transit from one end of this island to the other has long been recognized, and the court cannot shut its eyes to its existence. u Neither could these commissioners. And the object of the appointment of the Rapid Transit Commission was, if possible, to adopt some plan by which this public need might be met. In the carrying out of this work, undoubtedly individual losses and individual inconvenience may be sustained for which the law furnishes no compensation. But such a consideration cannot place a barrier against great public improvements; otherwise none would ever be constructed.

The legislature, therefore, having by the passage of the act under which these proceedings have been initiated given expression to the demand of the people for additional facilities of transit, the court should aid in the carrying out of this enterprise, unless some imperative reasons are shown why it should not be undertaken. Merely speculative objections, the fears of the timorous, and .the personal views of the few as to the feasibility of the enterprise, ought not to prevent or stand in the way of the taking of the subsequent steps which might lead to its completion. The same sort of objection, and from some of the same individuals, was heard at the time the Brooklyn Bridge was projected. It was pronounced an engineering impossibility, and that no one would cross it because of its manifest insecurity even if it were constructed; and disaster was predicted with as great certainty as it is now urged against the present enterprise, yet the Brooklyn Bridge was built, and we wonder now how it was possible that the public did without it. And it would now be difficult to find a man who would be willing that the bridge should be removed even if its cost might be returned to the treasuries of the cities which furnished the means of construction.

A point has been urged, which was not suggested upon the previous hearing, that the act is unconstitutional because it is calculated to deprive owners of their property without due process of law; and because the powers given by § 6 of the “ Rapid Transit Act ” to make detailed plans and specifications, and the powers given by § 14 of the act to alter or add to such detailed plans and specifications, are such as not only to deprive the property owner of the protection and assurances to which he was entitled under the consent originally given by himself or by the court, but also to impose upon him or his property the burden of a road of a character never contemplated by, and wholly unknown to him, for which his consent had never been asked, and to which his consent would never have been given.

A brief examination of the act will show that this objection cannot prevail. It is to be observed that prior to the asking for the consent of the property owner or of the court a general plan of construction is all that is provided for by § 4 ; and that after a general plan of construction has been approved, and the route or routes determined, the commissioners were to proceed with their detailed plan of construction prior to advertising for the doing of the work. And § 14, to which attention is called, only provides for the alteration of this detailed plan, which is not to be in existence at the time the consent of the property owner or of the court is asked for; and it specifically provides that whatever alterations or deviations may be made, they shall not be inconsistent with the general plan of construction adopted under the provisions of § 4. These deviations from the detailed plan, authorized to be made, in no way affect the general plan to which the property owner gave his consent. The details in respect to which changes are authorized come into existence. subsequent to the giving of the consent; and the statute, as already observed, is careful to preserve the integrity of the general plan which was consented to.

It has been further urged that there is no provision in the law for restoring the street, in case a company attempting to build this road shall fail after removing some or all of the subsoil of Broadway ; and that there is no provision in the act to secure abutting owners against consequential damages ; and that it is defective in'not providing absolutely for the completion of the work after it should be partially done; and that the act is unconstitutional in not providing for payment for the soil under Broadway which will be taken out in the making of the tunnel. The difficulty with most of these objections is, that ,it is assumed that the rapid transit commissioners in the subsequent prosecution of their work will fail in the doing of the duty which has been imposed upon them by the rapid transit act. The act expressly provides that the terms of sale shall require the successful bidder to deposit with the comptroller or chief fiscal officer of the city, in cash or approved securities, such amounts as the board shall deem sufficient to constitute a guarantee of full compliance with the terms of sale by the purchaser and by the corporation to be formed for the purpose of building and operating said railway as in the act provided. And it is to be presumed in the consideration of the action of the rapid transit commissioners that they will exact such security as will provide against any contingency of failure.

It is true that the act provides that, in case of failure, these securities or money shall be paid into the treasury of the city. But it would form a fund out of which the evils anticipated might easily be obviated.

The claim that there is nothing in the act to secure abutting owners against consequential damages in no way affects the validity of the legislation, as the law gives the property owners arnple remedies for any injuries which they may suffer.

The objection that no provision is made for compensation for .the soil which, is taken out the' street, it .seems to us cannot prevail. If it was the ease that the abutting owner had a right of property in the soil composing the street, then no sewer, could be built, no water pipe laid, no grade changed, and no pavement laid without compensating him for the soil which might be removed in the making of these improvements. Whatever portion of the streets occupied by the soil is needed for its improvement for public use, the legislature through the proper authorities has the right to' appropriate.

The questions then resolve themselves down to the general proposition as to the feasibility of the enterprise; and it is urged against its feasibility that it will work irreparable injury to the buildings upon either side' of the street in consequence of its method of construction. It is undoubtedly true that if any other means of effecting rapid transit were possible, or as possible as by means of a tunnel, it would be preferable. But the question before this court at the present time is not whether there may not be some other method of rapid transit which would be preferable, but whether the rapid transit commissioners having determined upon this plan as in their judgment the best, it should be carried out. And that is the only question now before the court.

We are of opinion, upon an examination of the facts, that the success of the enterprise is not a question of engineering, but a matter of finance; that the engineering problems can be overcome without any difficulty, providing the money is behind the engineer ; and that under the plan of construction adopted by the rapid transit commissioners most,' if not all, of the objections which have been raised to the fact of the railroad being constructed in a tunnel will be obviated.

In the first place there will be no combustion in the tunnel in the production of the motive power, which is a main cause of the vitiation of the atmosphere in the tunnel. In the next place the cars will not be lighted either by gas or oil; and hence this source of pollution will be avoided. And furthermore, in consequence of the rapid movement of the trains it will be impossible for the air in the tunnel to stagnate, which is another prolific source of pollution ; and there seems to be no difficulty whatever in successfully coping with the problem of ventilation.

But it is urged that people will not go down stairs to take a train in a tunnel. But they will go up stairs to the elevated railroad and down stairs therefrom to as great an extent as they will be required to go if the present scheme is carried out; and the approaches to the stations will be eminently more satisfactory in that they will be more, commodious, entirely removed from the weather, and more easily kept clear and attractive.

The Board of Rapid Transit Commissioners, upon the confirmation of this report, have the duty imposed upon them of making the detailed plans which are to control the method of construction and operation of the railroad in question. In these detailed plans a great number of things are to be provided for, and we are to presume that these commissioners will care for the interests of the public and the individuals who may be affected by the construction of the work, in the perfection of these plans, and the placing of such, safeguards around the proper performance of the work as will ensure its speedy, stable and efficient construction. And it would seem that if a company can be found willing to undertake the work under proper conditions of indemnity (which we must assume the commissioners will exact) there is but little doubt of its successful completion.

Another objection is, however, urged, that by the legislature taking off a portion of the routes which had been adopted by the original Rapid Transit Commission the whole proceeding failed and was required to be re-instituted.

It seems to us to be perfectly clear from the act under which these proceeeings are taken, that if a variety of routes were adopted by the rapid transit commissioners, it was possible for the commissioners appointed by the court, or for the court, to reject some routes and adopt others. As long as one complete route was adopted, the provisions of the act were complied with. It certainly was not within the scope of the legislative intention to make the whole scheme (where it is susceptible of being divided into integral parts) depend upon the rejection of each particular portion which might be entirely independent of the rest. In support of this view we have the authority of The Matter of the N. Y. Elevated Railroad Co., 70 N. Y., 327, in which it was held that under the old rapid transit act, where different routes had been selected by the rapid transit commissioners, the commissioners appointed by the supreme court to determine whether the road should be built or not might report in favor of one route and not in favor of another; and that all that was required, if there was any favorable report, was that it should be in favor of a complete road upon some route, and that where connections were proposed with other means of transit they might determine that some connections should be made and others should not. Applying this rule to the condition of affairs now before the court, it is to be observed that a complete route is reported favorably upon for the west side; and that another complete route in connection with other means of transit is reported upon for the east side. The east side makes its connection with other roads running into the city New York; and in determining as to the necessity of a continuation of this route, undoubtedly the commissioners had a right to take into consideration the other means of transit which were in existence.

In fact they were bound to do so. The objection, therefore, that because Madison avenue was taken out, and because the commissioners have reported against the portion of the route beyond the said section of Madison avenue, the commissioners had exceeded their powers, cannot prevail.

We are therefore of opinion that the report should be con-, firmed, and this work allowed to proceed.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    William J. Best, Rec’r, App’lt, v. The Davis Sewing Machine Co. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed July 7, 1892.)

    Limitation—Possessory judgment does not stay running on statute.
    Plaintiff, upon his appointment, found among the assets of the corporation certain unsealed obligations of the defendant payable in 1876. Defendant brought action to replevin said obligations and recovered judgment, which was reversed on appeal, and upon a new trial plaintiff recovered judgment, which was sustained. He then, in 1884, brought this action upon the obligations. Held, that the running of the statute of limitations was not stayed during the time the possessory judgment in favor of defendant was in force, and that the action was, therefore, barred by the statute.
    Appeal from judgment entered on verdict directed in favor of ■defendants, and from order denying motion for a new trial.
    The following is the opinion of the court below:
    Barrett, J. — The six years statute of limitations plainly governs, as the obligations in question are not sealed instruments. This action was not commenced within six years from the maturity of such obligations, and consequently the plea of the statute must avail, unless the commencement of the action was stayed by injunction or other order of a court or judge, or by a statutory prohibition. Code, § 406. There was here no injunction or statutory prohibition, but it is contended that there was what amounted to “an order of a court or judge” restraining the commencement of the action. It seems that the defendant, the maker of these obligations, brought replevin therefor against the plaintiff, and recovered a judgment for their possession, which judgment was subsequently reversed, and on a new trial judgment was given for the plaintiff that he was entitled to retain the instruments. The plaintiff’s present contention is that the statute did not run while the judgment in the defendants’ favor with regard to the right of possession remained in force. This contention, in my judgment, cannot be sustained. The possessory judgment did not stay the commencement of an action on the obligations. It is true that it may have been pleaded against the plaintiff’s right to recover, but that involved no prohibition of the ■action. The defense would not have been the judgment itself, but the plaintiff’s want of ownership, as to which the judgment was res adjudícala. While the judgment remained unreversed, therefore, it was simply conclusive evidence in support of a single defense to an action on the obligations ; and though in a general sense conclusive, it could have been rebutted by proof of fraud or want of jurisdiction. But, even if the judgment were thus conclusive, and could not have been rebutted, still it did not work any practical inconvenience, for, if pleaded to a complaint on the obligations, the court would undoubtedly have stayed the trial until the determination of the appeal. The rule is well settled that a party who seeks to avoid the statute, notwithstanding- the lapse of the prescribed period, must bring himself expressly within some of the exceptions specified in the Code. Sanford v. Sanford, 62 N. Y., 553. He does not do this merely by showing the existence, for a specified period, of a valid defense to his claim. He must show that he was actually restrained from bringing his action ; not that such action, because of some particular incident, would probably have been unsuccessful. The plaintiff here was not only free at all times to bring an independent action upon these obligations, but I think he might have set up his present demand by way of counterclaim in the possessory action. The maker of the obligations was there the plaintiff; and the subject matter of that action was the ownership of the instruments. Such ownership was a prerequisite to recover upon the obligations, and the plaintiff’s present claim was therefore connected with the subject of the possessory action. If the situation were reversed, there would be no doubt of the defendant’s right in the present action to set up, by way of counterclaim, its ownership of the instruments, and to demand as affirmative relief that the plaintiff deliver them up. The ownership of the instruments is, in effect, the subject of both actions. It is the foundation of one and the gist of the other. Why could not the present plaintiff have said to the plaintiff in the possessory action: “ You are not the owner of these obligations, but I am; and as I am such owner, and as the obligations are due, I demand as a fitting incident to my claim of ownership, if successful, that you pay such obligations? ” It would seem to be as reasonable, and as harmonious with the Code (§ 501, subd. 1), to permit a complete determination of the substantial controversy in this manner as to permit an equitable counterclaim in an action upon the obligations, praying that the ownership be determined, and that the instruments be delivered to the defendant. A verdict must therefore be directed in favor of the defendants." Each group of defendants, appearing by separate attorneys, is entitled to costs. Thus there will be three bills taxed, but, under the circumstances, I shall grant no extra allowance.

      Delos McCurdy, for app’lt; John D. Kernan, for resp’ts.
   Per Curiam.

-—In December, 1877, the National Trust Company of New York became insolvent and the plaintiff was appointed receiver of its property. Final judgment of dissolution was entered in April, 1879, under which the plaintiff was continued as receiver. Among the assets which came into his hands were ten bonds purporting to be made by the Davis Sewing Machine Company for the sum of $1,000 each, which by their terms were due on November 1, 1876. These bonds, it would appear, had been pledged with the trust company as collateral for a loan to the Security Bank of Watertown, which remained unpaid at the time the receiver was appointed. In February, 1878, the Davis Sewing Machine Co., by leave of this court, brought against the receiver an action of replevin for the bonds, demanding judgment for their possession and damages for their detention. The answer of the receiver claimed a lien thereon for the unpaid balance of the loan for which they were pledged as security. A trial was had upon the issue thus raised in July, 1878, which resulted in favor of the sewing, machine company, awarding them possession and adjudging. that the receiver had no title to, or right to the possession of the bonds. This judgment was by the general term reversed on October 19,1883, and a new trial ordered. In May, 1884, the re-trial was had, which resulted in a judgment in favor of the receiver, awarding him possession of the <■ three bonds which are the subject of the present suit From this judgment an appeal was taken to both the general term and the court of appeals, and the right of the receiver to the possession of the three bonds was finally affirmed.

This suit was commenced as to some of the defendants in March, and as to others in April, 1884. It will be noticed that from July, 1878, to October, 1883, there was a valid outstanding judgment against the receiver denying his ownership or right to the possession of these bonds, and awarding their possession to defendant. It is conceded that if during this period while the judgment was outstanding the running of the statute of limitations was not suspended, then the statute is a bar to the action; for the obligation being promissory notes, and not sealed instruments, the six years statute of limitations applies.

The Code provides (§ 406): “ Where the commencement of an action has been stayed by injunction, or by other order of a court or judge, or by a statutory prohibition, the time of the continuance of the stay is not a part of the' time limited for the commencement of the action.’’

Although there is much force in the argument of appellant that “the effect of the action of replevin and the judgment therein against the receiver was more potent than an injunction or other order of the court, for it not only barred his remedy on the obligations, but judicially denied his right to their possession,” it must be conceded that the judgment is not one of the exceptions provided by the Code preventing the running of the statute.

The question therefore is presented, whether there is any-ground other than the exceptions provided by statute which will suspend the running of the statute of limitations after it has once commenced to run.

We agree with the view expressed by the learned judge below, “ that the rule is well settled that a party who seeks to avoid the statute, notwithstanding the lapse of the prescribed period, must bring himself expressly within some of the exceptions specified in the Code.”

In the case of McQueen v. Babcock, 41 Barb., 337, it was decided that a right of action not expressly stayed or prevented by an injunction must be prosecuted within the prescribed period or it is barred. In the case of Sanford v. Sanford, 62 N. Y., 553, the debtor was declared a lunatic and had no committee who could be served. Although the argument was there made that for this reason the statute did not run, the court held that there was no provision for an exception in such a case. We think that the authority of this case and an examination of the earlier cases will show that the statute when once it commenced to run was not suspended except pursuant to some other express provision of law ; and it was to abate the vigor of this rule that caused the enactment of § 406 of the Code.

In view of the clear and satisfactory opinion of the learned judge below, it is unnecessary for us to do more than adopt his-reasoning and concur in the result reached by him. - We are, therefore, of opinion that the judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Patterson, JJ., concur.


author: Patterson, J.

text:
    John R. Caswell, Resp’t, v. Rowland N. Hazard et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed July 7, 1892.)

    Partnership—Accounting—Individual account.
    In an action for an accounting of a former partnership it was claimed that a charge of $89,000 in the account of the defendant H. was properly one against the firm. The account from 1872 to 1875 was headed “ H., debtor and creditor,” and the words “ note account ” were then added to-it. Held,, that the burden was upon H. to prove that this did not continue-to be his personal account, but was one representing advances for discounts upon the firm paper.
    Appeal from judgment entered upon the report of a referee.

      Lockwood & Hill, for resp’t; Anderson & Howland, for app’lts.
   Patterson, J.

—This is an appeal from a judgment rendered upon the report of a referee in an action brought to compel an accounting by the defendants of the property and effects of a co-partnership firm which, prior to the 31st of July, 1876; consisted of the parties plaintiff and defendant. The partnership expired by limitation on the day named, and it appears in the testimony that subsequent thereto and before October, 1886, an action bad been brought by the plaintiff against these defendants for an accounting, but such action was compromised and discontinued and an agreement was entered into with reference to the disposition of the property and assets of the firm, and the rights of the parties thereto were defined in the agreement. It further appears that-among the assets and property were certain fixtures contained in the store in Thirty-ninth street and in the store in Twenty-fourth street, and real estate and buildings at Newport in Rhode Island, and also merchandise and other personal property in the cities of New York and Newport and goods consigned to various persons for sale.

By the terms of the compromise agreement which was made for the purpose of winding up the co-partnership affairs, it was provided that the plaintiff was to receive a certain portion of the merchandise, as shown in an inventory dated the 31st of July, 1876, and the fixtures in the store in Thirty-ninth street were to be valued by appraisers, and the plaintiff was to receive in full payment for his interest one-quarter of fourteen-fifteenths of the value as determined by the appraisers; that as to the Twenty-fourth street store he was also to receive one-quarter of the value of the fixtures to be determined by appraisers, and that he was to take as his share one-quarter of one portion of the retail stock in that store as shown by an inventory of the same date, and that as to another portion of the stock it was to be divided. After deducting one-fifteenth, the plaintiff was to receive one-quarter of the remainder; and for any deficiency in his share the defendants were to pay Caswell the inventory value thereof. As to the Newport store and buildings, their value was fixed at $20,000, and the interest of Caswell therein was agreed to be $5,000, and upon the payment of that sum Caswell was to convey to E. N. Hazard, one of the defendants, an undivided quarter of the land free from incumbrance, and to transfer his interest in the stock in trade of the co-partnership property at Newport. It was further agreed that the defendants were to have charge of collecting 'outstanding accounts and the settlement of co-partnership debts, and that they alone should sign in liquidation, and upon payment of the copartnership debts and allowing E. N. Hazard, one of the defendants, for the interest he had in the- stock in the Thirty-ninth street store and the Twenty-fourth street store, and his proportion of the outstanding accounts including the Newport accounts, the defendants should account for and pay over to Caswell one-quarter of the remainder, as the same might be collected; payment to be made at the end of each month. It was also provided that Caswell was to be paid for his interest in the stock in an instrument factory after certain deductions.

It is claimed by the plaintiff that the defendants did not pay over the amounts to which he was entitled specifically under this winding up agreement; that is to say, that they neglected and refused, after demand, to pay the whole of his share of the value of the fixtures, and that there was a certain sum due for his share of the fixtures in the Thirty-ninth street and in the Twenty-fourth street stores, and that the defendants have failed to account to him for the consigned goods and stock in trade in the hands of various druggists in the United States held by them for sale on account of the firm, and that the defendants have exercised exclusive control and ownership over the consigned goods, have asserted an absolute title to the same, and have entered the same in their books as their own property, and that they have refused and neglected to account for moneys received by them from sales of consigned goods, and that they have collected large amounts of debts due the firm at and since the time of the dissolution, and that they have refused and neglected to render an account of the partnership property of the firm or of the amount due the plaintiff on account of the partnership assets and effects; and judgment was asked that the defendants be compelled to render an account of the property and effects of the firm and all dealings and transactions with respect thereto, and that an accounting may be had and the defendants may be compelled to pay the plaintiff the amount which shall be found due on the accounting.

The answer generally denies all the allegations of the complaint, and also that the defendants have neglected or refused to account on request by the plaintiff for the debts due and collected, and for expenditures claimed to have been made by the defendants on account of the firm. By consent of the parties the action was referred, and upon the reference an account was presented by the defendants; and upon an examination of that account, and upon the testimony presented to the referee concerning its items, he held that both the defendants were chargeable with the sum of $1,629.25, with legal interest from the date of the commencement of this action, .June 14, 1878, for an amount which appears to have been admitted by the defendants as a balance due the plaintiff.

He also found that the plaintiff was entitled to judgment against the defendants for the sum of $3,103.04, with interest fróm the date of the commencement of this action, that principal sum representing the plaintiff’s share of the value of returned and consigned goods, and also that the plaintiff was entitled to recover against the defendant, Rowland N. Hazard, individually, the sum of $9,332.47, with interest from the 25th of March, 1878, that being one-fourth of $39,567.71, which he found to be an erroneous credit to the defendant named which he caused to be made upon the books of the copartnership in liquidation. The ground upon which the referee so found was that this whole sum should have been charged to the individual account of Rowland N. Hazard, and did not represent an amount chargeable against the firm, and he also held that the plaintiff was .entitled to judgment against the defendant, Rowland N. Hazard, for the sum of $2,748.49, with interest from March 25, 1878, that being also an amount erroneously debited to the plaintiff’s personal account in iavor of the defendant Hazard; the result of his report being that a judgment was directed against both defendants for $8,045.87, including interest, and against the defendant, Rowland N. Hazard, for the sum of $19,858.53, including interest. There were also involved in the trial before the referee certain claims which were made by the defendants for credits not allowed by the referee, and a great many requests to find facts were denied by the referee, and upon an examination of the whole case we do not think that the referee’s report should be disturbed, for no errors were committed in his refusals to find. As to the various charges made against the defendants in the report and constituting the items upon which the judgment was directed, we consider, after an examination of the record, that the referee was right in the conclusion he reached as to the separate liability of the defendants. It is quite clear that the referee acted upon the proof presented respecting the account as rendered, and that his judgment was not ■controlled by the testimony of the expert bookkeepers who were called on either side, but that as he adjusted the accounts, it was upon a consideration of the whole testimony as it related to these particular items.

Concerning the charge made for the value of the returned and consigned goods, and the proportionate share to which the plaintiff was entitled, we think the testimony abundantly establishes the right to a recovery for that amount, and the same may be said as to the other items which have been charged against both of the defendants. But a serious contest was made with respect to the item of $9,230.47, the contention being on the part of the defendant Rowland H. Hazard that the sum of $39,567.71 was an amount properly chargeable against the firm, and that it represented moneys that were paid by him upon notes or obligations of the firm which had been negotiated and used by him or by the firm for the purposes of the business.

There are certainly some peculiarities in this account which have been well commented upon by the learned referee. As it originally appeared upon the books and in ledger Ho. 2, it was a personal account of R. H. Hazard and was entitled, “ R. H. Hazard, debtor and creditor.” It seems that this account was begun in 1872 and was carried with that title until October, 1875, when the words, “Hate account ” were added' to it, and subsequently that account was kept in such a way as to introduce a great deal of confusion into this br anch of the case. We agree with the referee that this account on all the testimony must be treated as a personal account of Rowland H. Hazard. It was not successfully shown by the defendant that this account was any other during the winding up of the business than it was before October, 1875, or at the time he took possession of the books, to conduct the liquidation of the concern under the winding up agreement. What he now claims the “ Hote account ” was undoubtedly at all times nothing but his own individual liability and, as is remarked by the referee, it staggers belief that this large sum of $89,000 could have been paid simply for-discounts upon the amount of paper emitted by the firm. The burden of proof was upon the defendant Hazard to show that this sum was chargeable against the firm, and upon an examination of the testimony it is clear that he has failed to do so. A patient study of the whole subject satisfies us that the conclusions reached by - the referee upon the merits of the accounting were correct, and we see no reason on the testimony for disturbing his decision as to any of the items for which he has directed judgment.

The judgment appealed from must be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Barnard, P. J.

text:
    The Northport Real Estate & Improvement Co., App’lt, v. Jeremiah Hendrickson, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Ejectment—Adverse possession.
    The common source of title conveyed the premises in dispute and after-wards conveyed the entire tract of which they were a part, and this latter deed was first recorded. The premises in dispute were several times conveyed and became united with another lot, no fence being between them. A portion of the lot in question is an orchard and a portion has been cultivated as a garden by defendant's predecessors, and some use of it by each of them for over twenty years was shown. Plaintiff claims the lot because included in the description of the entire tract under the deed first recorded. Held, that a verdict for defendant would not be disturbed.
    2. Same—Charge.
    Where the court has charged that plaintiff had the prior title and unless the proof established such acts of ownership as the statute defines for more than twenty years by defendant it was entitled to recover, a request to charge that a constructive adverse possession in plaintiff was not answered by a constructive possession in defendant is needless, and a refusal to so charge is not error.
    Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial on the minutes.

      N. S. Akerly, for app’lt; Thomas Young, for resp’t.
   Barnard, P. J.

—The proof shows that both parties claim under the same title. In 1839 Jessie Bunce owned a tract of eighty acres of which the land in dispute is a part. He conveyed the lot in question by deed dated May 25, 1839, but acknowledged November 7, 1839, to Fannie and Amelia Bryant. On the 2d of November, 1839, be conveyed the whole farm to one S. P. Hart. Hart’s deed was first recorded on the 27th of December, 1839. The defendant represents the Bryant title. The plaintiff claims the premises because it is included in the description of the farm. In the Bryant deed of the disputed premises one of the boundaries on the south is a certain lot No. 10. No. 10 was owned by a separate owner until 1854, then the Bryant lot and No. 10 were united in one Samuel Bryant. Bryant sold lot 10 separate in 1862 to one Seaton and subsequently conveyed to him the disputed piece, and it has not since been disputed. There is an orchard in the rear of No. 10 which has been in the possession of the occupants of No. 10 since 1839. There was an occasional cultivation of a garden spot in the rear of No. 10 (north- of it). There was never any fence separating No. 10 from the rear of disputed lot. There was proof tending to show some use of the disputed property by each, for over twenty years. There seems to be no real question but that the defendant is right in his claim. The Bryant title is- oldest in date, and the deed to Hart of the whole farm is probably a mistake in not excepting the Bryant piece. That piece was the subject of repeated conveyances thereafter and a part of the same has been occupied as an orchard beyond dispute ever since. The verdict will not' be set aside unless some error was committed on the trial. The court charged the jury that No. 10 and the rear lot for the purpose of adverse possession constituted two lots, but that the orchard ground and the wood lot are the premises in dispute and were one lot, and that an occupation and improvement of a part would support a verdict for an occupation of the whole. Code, § 370. This section reads as follows, “ When a known farm or a single lot has been partly improved, the portion of the farm or lot that has been left not cleared or not enclosed according to the usual course and custom of the adjoining country is deemed to have been occupied for the same length of time as the part improved and cultivated.” The charge is therefore right; the defendant had a written title, and the jury were told that the plaintiff had the prior title, and that unless the proof established such act" of ownership as the statute defines for more than twenty years by the defendant, the jury were to find the verdict for the plaintiff. The request to charge, that a constructive adverse possession in plaintiff was not answered by a constructive adverse possession in defendant, was needless. The charge as given stated the true ground of inquiry.

Judgment should, therefore, be affirmed, with costs.

Dykman and Cullen, JJ., concur.


author: Cullen, J.

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    Sumner A. Mason, App’lt, v. Emma J. Mason, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Ejectment—Default.
    In an action of ejectment, defendant took judgment by default. On motion to open the same, the affidavits showed a persistent effort by defendant to bring the action to trial, and' an equally persistent effort to avoid it by plaintiff; that although plaintiff’s counsel was absent at another court, his representative stated that when discharged from attendance he would not be able to try the case. Held, that the motion to open the default was properly denied: that such denial would not preclude plaintiff from enforcing any cause of action he might have, as he was entitled to a new trial on payment of costs, and that such denial was equivalent to granting the motion on payment of the costs. •
    Appeal from order denying motion to open a default taken by defendant.

      W. C. Beecher, for app’lt; Alexander Cameron, for resp’t.
   Cullen, J.

—This is an appeal from an order denying a motion to open a default taken by the defendant at circuit"

The judgment entered will not preclude the plaintiff from enforcing any cause of action he may have. A dismissal of the complaint by default or nonsuit after evidence in an action at law is no bar to a new action for the same cause. Wheeler v. Ruckman, 51 N. Y., 391. If it were otherwise, the action being in ejectment, the plaintiff is entitled to a second trial as a matter of right, on payment of the costs of the action. The effect of the order appealed from is, therefore, the same as if the motion had been granted upon payment of all the costs in the action.

The imposition of such terms was entirely proper. The affidavits of the defendant show a long and persistent effort on her part to force the cause to trial, and an equally persistent struggle on the part of the plaintiff to avoid a trial. The fact that on the particular day upon which the default was taken the counsel for plaintiff was in attendance at another court is not decisive of his right to a postponement. His representative stated at circuit that even when discharged from attendance under the subpoena, the counsel would not be able to try the cause. After such a statement it was not necessary or proper to hold the cause until another day.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


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    Anna M. Arnold, App’lt, v. The Norfolk & New Brunswick Hosiery Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Default—Opening—Estoppel.
    A party is not precluded from moving to open a judgment taken by default by reason of his having paid such judgment. Such payment is in no sense voluntary.
    2. Same—Terms.
    Where a defendant is guilty of loches in moving to open a default, but his course of procedure was dictated not by intention to evade the jurisdiction of the court, but by an erroneous judgment as to the form in which best to present his defense, and the effect of the judgment will probably extend to other cases between the same parties, such default will be opened, but on terms which will afford plaintiff indemnity for her expenses, and secure her in case of future recovery.
    Appeal from order opening a default, and giving defendant leave to answer.

      Blackwell Bros., for app’lt; W. D. Edmonds, for resp’t.
   Cullen, J.

—This is an appeal from an order setting aside a judgment against the defendant entered by default for $11,077.25, and giving the defendant leave to answer. Two similar applications had previously been made and denied. No terms were imposed by the court at special term.

It would hardly be profitable to recite the facts under which this default was suffered, long narratives of which áre given in the papers on each side. The loches of the defendant were great. It certainly deserved much, and probably all, the censure passed upon it in the opinion of Mr. Justice Bartlett denying the first motion to open the default. Still we think that the defendant’s course was dictated not by an intention to evade the jurisdiction of this court, but by an erroneous judgment as to the form and manner in which best to present its defense.

The effect of this judgment may go beyond this case, though the amount involved in this case alone is large. In an action for subsequently accruing instalments of royalty under the contract which is the basis of this suit, the circuit court held that the judgment suffered by default was conclusive as to the plaintiff’s right to recover. That ruling this. general term held erroneous. But the question is not free from doubt and will remain a stumbling block in further litigations between the parties, until it is finally settled by the court of appeals.

We think it wiser and fairer to give the defendant, despite its default, a full opportunity to present its defense in court and have it passed upon the merits.

The point raised by tfyk plaintiff, that the defendant by paying the judgment is precluded from applying to open it, is untenable. Such payment is in no sense voluntary. It is a payment under compulsion of law. A defendant is under no obligation to suffer his property to be seized on execution in order that he may retain his right to vacate the judgment or reverse it on appeal.

But terms should have been imposed as a condition of opening the default. The plaintiff’s expenses must have been large, and as the amount involved is large the defendant can well afford to make reasonable indemnity.

The order appealed from will be affirmed on condition that the defendant pay the plaintiff the sum of $250 and the disbursements of this appeal, and on the stipulation that the defendant will not apply by motion or by action for restitution until it recovers judgment in its favor in this action.

Barnard, P. J., concurs; Dykman, J., not sitting.


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    David Butler, Resp’t, v. Thomas Dinan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Monet paid—Partnership—Statute of frauds.
    While a paroi agreement to take a person in partnership for ten years is void under the statute, this will not give such person a right to reclaim his advances made under the agreement if as matter of fact the partnership is entered into or if the other party is willing to comply with it; but where he refuses or neglects to do so, an action to rescind the agreement and recover back the advances as money paid may be maintained.
    Appeal from judgment in favor of plaintiff, entered on the decision of the court without a jury.

      Calvin Frost, for app’lt; William McCauley, for resp't.
   Cullen, J.

—This is an appeal from a judgment entered on the decision of the court without a jury. The action was to recover moneys advanced to the defendant.

The point in issue between the parties is narrow. That the moneys sued for were advanced to the defendant is conceded. Both parties agree that the moneys were paid to defendant in contemplation of a partnership to manufacture brick. The plaintiff contends that the agreement was never consummated and that the defendant refused to receive him into the business ; the defendant contends that the parties became and are partners, and that, hence, plaintiff’s only right is to a dissolution and an accounting. .The partnership term was to be ten years. No writing was executed by the parties. This rendered the agreement void. Wahl v. Barnum, 116 N. Y., 87; 26 St. Rep., 457.

We agree, however, with the counsel for defendant that this did not give the plaintiff the right to reclaim his advances if, as a matter of fact, the partnership was entered into, or if the defendant was willing to comply with the agreement and take the plaintiff into partnership with him. But the trial court found, as matters of fact, that the agreement was inchoate and executory; that the parties did not become partners, and that, the defendant refused or neglected to give the plaintiff an interest in the business. We think these findings are well justified by the evidence. Upon the defendant’s default, the plaintiff might have insisted upon his interest in the business and property of the partnership business, and had the defendant declared a trustee to the extent of that interest. • But he was not confined to that remedy. He could elect to rescind the agreement and recover the advances made under it as money paid. This action is, therefore, properly-brought on the facts proven.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


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    The Equity Gas Light Co., Resp’t, v. Ferdinand McKeige, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Corporations—Cancellation of stock issued for contractors—Authorization of.
    Plaintiff issued certain stock which it placed in the hands of its treasurer to be delivered to contractors on completion of their contract. The work was not begun, as two of the contractors were convicted and imprisoned and the other became a fugitive. The one who had been actively-engaged in procuring the contract subsequently gave an order for the surrender of the stock to the company; which he signed for all the contractors. He had previously given the company a paper signed by the fugitive, stating that any agreement made would be satisfactory to him, but the evidence as to the genuineness of the paper was conflicting. There was authority to sign from the other. Held, that the finding that the fugitive united with his co-contractors in cancelling the certificate would not be disturbed, and that plaintiff was entitled to a surrender thereof.
    Appeal from judgment in favor of plaintiff.

      Gratz Nathan, for app’lt; Horace Graves, for resp’t.
   Barnard, P. J.

—On the 27th of August, 1889, the plaintiff issued to its president a certificate for thirty thousand shares of its stock. The plaintiff company had just before that made a construction agreement with George F. Work, Louis E. Plieffer and John McFarlone. The certificate was to be deposited with the defendant until the agreement was fulfilled- by the contractors. Work and Plieffer were convicted for some crime in Pennsylvania, and were imprisoned, and McFarlone became a fugitive. The defendant, was the treasurer of the plaintiff, and knew of the agreement, and the same is specified in the receipt which he gave to the contractors for the stock. On the 21st of November, 1890, the contractors authorized the cancellation of the stock certificate; this authorization was not signed by McFarlone personally, but was signed by Work in his name. Work had been a principal actor for all the firm of contractors, and had given an order on the defendant in October, 1890, to deliver up the stock to plaintiff’s president. It was proven that Plieffer had given authority to Work to sign this order for him. On the 27th of November, 1890,' the contractors gave a general release to the plaintiff. Work signed this paper for McFarlone. The only material dispute in the case is as to the authority of Work to act for McFarlone. In the early part of 1890 Work gave to the plaintiff’s president a paper purporting to have been signed by McFarlone, stating that any agreement made between the plaintiff and Work and Plieffer would be satisfactory to him. Devlin, who knew McFarlone’s' handwriting, testified to its genuineness. Devoe testified that it was not. The paper is not dated, and has no place upon it indicating where it was written. The fact that he was then a fugitive will probably account for this; but if the handwriting is genuine, those facts are of no importance. There is no sufficient ground to reverse the finding of the trial judge that McFarlone united with his co-contractor in cancelling the certificate.

The judgment should be affirmed, with costs.

Dyxman and Cullen, JJ., concur.


author: Dykman, J.

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    The Monroe Dairy Association, Resp’t, v. John Stanley, Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Milk cans—Evidence—Knowledge of presence of can on premises NEED NOT BE SHOWN.
    In a prosecution for a penalty under chap. 401, Laws 1887, as amended by chap. 25, Laws 1890, relating to milk cans, it is not necessary to prove knowledge on the part of defendant of the presence of the can upon his premises. If it was brought to his place and used in his business by his servants, the jury may find that it was in his actual possession, and then the presumption against him is sufficient evidence of its use, and renders him liable to the penalty.
    Appeal from judgment in favor of plaintiff, entered upon, verdict.

      Richard J. Lewis, for app’lt; Eugene B. Stokein, for resp’t.
   Dykman, J.

—This action was commenced for the recovery of a penalty of fifty dollars under chapter 401 of the Laws of 1887, as amended by chapter 25 of the Laws of 1890, entitled “An act in relation to milk cans."

The statute so far as it is invoked for the sustenance of this action is this : “It is hereby declared unlawful for any person or persons, without the consent of the agent of the owner or owners, or shipper or shippers, to use or dispose of, buy or traffic in any milk or cream can or cans belonging to any dealer * * * having the name or initials of the owner * * * stamped, marked or fastened on such can or cans:" Section 1 of Laws of 1887.

“ The fact that any person or persons, without the consent of the agent of the owner * * * either using, selling, disposing of, buying or trafficking in or having in his, her or their possession, or under his, her or their control, any such milk or cream ■can or cans, is presumptive evidence of the unlawful use or sale.” Section 2 of the Law of 1887.

“Any person or persons who shall, in violation of this act, ■either use, sell, dispose of, buy, traffic in or have in his or her or their possession, any such can or cans, or who shall wilfully mar, ■erase, or change by remarking, or otherwise, the said name or initials of any such owner or owners, dealer or dealers, shipper or shippers, so stamped, marked or fastened upon said can or cans as in this act provided, shall be liable to a penalty of fifty dollars for any such can so used, sold, disposed of, bought, trafficked in ■or found in his? her or their possession. Such penalties may be recovered by action in the supreme court of this state, with costs and disbursements, and the place of trial of such actions may be in the county in which the owner or owners, dealer or dealers, shipper or shippers of such can or cans may reside at the commencement of 'such action.” Section 4 as amended by Laws of 1890.

Prior to the passage of this law the farmers of the central, southern and eastern portions of the state of New York had become largely engaged in the business of producing milk for the New York market, by reason of the facilities for the rapid transportation of that article afforded by the different railroads leading to that great mart of trade.

The business required many milk cans at considerable expense, and the owners found by experience that their cans were not returned. Their detention became so frequent and so extensive that it could not be attributed to accident, and was evidently the result of design.

In that state of affairs application was made to the legislature for the'enactment of a law which would terminate that great and increasing evil, and the statute cited was made for that purpose.

It was evidently essential that the law should be stringent and comprehensive in its scope and operation if it accomplished the purpose for which it was designed.

Before the passage of this law it was easy and comparatively safe for a dealer in New York city to retain a milk can, even though he did so with a felonious design, for if he was detected he could easily attribute its detention to mistake or oversight and surrender its possession.

It was therefore necessary to make the possession or control of cans without consent presumptive evidence of unlawful use in violation of the statute, and it was clearly within the competence of the legislature to make such a rule of evidence. People v. Turner, 117 N. Y., 233; 27 St. Rep., 158; People v. Ryder, 124 N. Y., 504; 36 St. Rep., 468.

Turning now to the record in this case we find the complaint to aver that one of the milk cans of the plaintiff was found in the possession of the defendant at his place of business in the city of New York on the 10th day of August, 1891, and that such possession was without the consent of the plaintiff or its agent, wherefore judgment was demanded for the sum of fifty dollars, with costs.

The. cause was tried at the circuit before a jury, and the plaintiff introduced testimony tending to establish the allegations of the complaint, and the defendant produced evidence tending to show that the can was not actually in his possession.

The trial judge sent the case to the jury under a charge which followed the provisions of the statute and upheld them, and the jury rendered a verdict in favor of the plaintiff.

The defendant has appealed from the judgment entered upon that verdict and thus presented to us questions of law only.

The counsel for the defendant requested the court to charge the jury thatpf the defendant never knew that the can was on the premises he was not liable, to which the court replied: “ He is liable if it was in his possession ; I do not go further than that,” and the defendant’s counsel excepted.

As we have already seen, it was the design of the statute to make possession or control presumptive evidence of the unlawful use which brought liability to the penalty, without proof of wrongful or felonious intent. Neither was proof of knowledge of the presence of the can upon the premises of the defendant essential. If it was brought to his place and used in his business by his servants, the jury might well find that it was in his actual possession, and then the presumption against him was sufficient evidence of its use.

The exception, therefore, presents no error. Neither is there any force in the constitutional objections raised by the defendant against the statute.

As we have already seen this statute was demanded by the exigency which brought it into existence and it must be permitted the full force of all its provisions. Its operation must not be curtailed by hard cases, and it must be administered without reference to persons.

If the defendant finds himself environed by circumstances which constitute him an offender of this statute he must accept the consequences. The plea which would excuse him would permit the escape of many persons whom the law was designed to reach.

If he was as innocent as he claims to be, the exercise of proper vigilance would have prevented the introduction of the can upon his premises, and such care on the part of all persons would go far to discourage the wrongful detention of the cans.

This statute is designed for the protection of,honest men against thieves and wrong-doers, and it is the duty of the courts to enforce it and not permit its evasion by specious excuses.

The record discloses no.error and the judgment should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


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    The People ex rel. The State Commissioners in Lunacy, Resp’ts, v. The Superintendents of the Poor of Queens Co., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Lunacy—Removal op lunatics to state hospitals.
    It is no excuse for a failure to comply with an order of the state commissioners in lunacy for the removal of insane pauper patients to a state hospital that the officials charged with that duty have no funds for that purpose.
    Appeal from order" granting a peremptory mandamus requiring defendants to remove certain insane patients to the state hospital.

      B. W. Downing, for app’lts; S. W. Rosendale, att’y-general, for resp’ts.
   Dykman, J.

—This is an appeal by the defendants from an or- " der of the special term directing the issuance of a peremptory writ of mandamus requiring them to remove to the Hudson Biver State Hospital at Poughkeepsie fifty-nine insane male patients then in their custody as superintendents of the poor of Queens county.

In pursuance of the provisions of chapter 126 of the Laws of 1890, under which this proceeding was instituted, the relatorsmade an order for the transfer of these insane patients to the Hudson River State Hospital at Poughkeepsie, which is in a district adjoining that in which the county of Queens is located.

Section 3 of the act, to which reference has been made, directs the state commissioners in lunacy to ascertain from time to time what vacancies exist in the state hospitals, 'and requires them to cause the removal to such hospitals of as many of the pauper insane patients in the several counties of the state as can be accommodated therein, and that section justifies the order made by the commissioners.

The superintendents of the poor refused to obey the order so-made, and thereupon the commissioners made application for the writ of mandamus already mentioned.

The salutary and beneficent purposes of the statute under which the relators have actedj must not be defeated by unreasonable excuses.

The technical objections to the proceedings of the relators which-led up to the order for the transfer of the fifty-nine patients are entirely destitute of foundation. The requirements of the law received full compliance, and the order was justified by its provisions.

In relation to the expenses the statute reads thus: “ The ex penses of the transfer of said pauper patients to said asylums-beyond the limits of the district where the patient is regularly to-be cared for, shall be chargeable to the state, and the bills for the-same when approved by the State Commission in Lunacy shall be paid by the treasurer of the state on the warrant of the comptroller out of any moneys appropriated to carry out the provisions-<of this act.” Section 9.

These defendants were, therefore, under obligation to discharge the duties imposed upon them by the statute, and present their bill for expenses incident to such performance to the proper board for audit and allowance, and then the fund was designated for their payment.

But few public officers are provided in advance with money to-pay the expenses incident to the performance of their official duties, and yet the absence of such funds has never been pleaded or admitted "as an excuse for a failure in the discharge of public functions.

The defendants have failed to furnish any excuse for their disobedience of the requirement of the relators, and the order for the-peremptory writ should be affirmed, with costs.

Barnard, P. J., concurs; Cullen, J., not sitting.


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    The People ex rel. John N. Milliken, Resp’t, v. The Commissioners of the Almshouse of the city and town of Newburgh, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Veterans—Appointment—Qualifications.
    The proviso contained in § 1 of chapter 464, Laws 1887, governs the-operation of the whole statute. If the soldier or sailor possesses the business capacity necessary *o discharge the duties of the position involved, he has the preference; if he is destitute of such capacity he is not within the provisions of tue law and can derive no benefit therefrom.
    2. Same.
    Where the appointing body has, in good faith, exercised its discretion and judgment and decided that the applicant is not possessed of the necessary capacity, its decision cannot be overruled by the court.
    3. Same—Mandamus.
    Where the position in question is already piled by another person, mandamus will not lie to determine the question of title thereto, but the appropriate remedy is by information in the nature of a quo warranta.

    Appeal from an order directing the issuance of a peremptory mandamus commanding defendants to appoint relator as superintendent of the poor of the city and town.

      E. A. Brewster, for app’lts; S. E. Dimmick, for resp’t.
   Dykman, J.

—This is an appeal from an order directing the issuance of a peremptory writ of mandamus commanding the appellants to appoint the relator superintendent of the poor of the city and town of Newburgh.

The order of the special term was based upon an affidavit of the relator, which stated that he was an honorably discharged union soldier, residing at the city of Newburgh, and on the 4th day of April, 1892, he filed with the commissioners of the almshouse an application for the appointment of superintendent of the almshouse of that city and town.

That on the 5th day of April, 1892, at a regular meeting of the commissioners, in disregard of his petition and in 'defiance of the law, they appointed Chauncey F. Gardner, who was not a discharged union soldier, such superintendent for the ensuing year.

The affidavit then closed with a prayer for the issuance of a-peremptory writ which should command the defendants to appoint the relator such superintendent.

The affidavit was silent respecting the qualifications of the relator and his competency to perform the duties of the office which he sought. It did not state his age, or whether he had lost a limb or sustained any other physical impairment which might incapacitate or disqualify him.

In opposition to the motion the defendants presented the affidavit of the president of the board of commissioners of the almshouse of the city and town of Newburgh, which consists of six members, in which it was stated that by the law under which the hoard was organized it was made the duty of the commissioners to appoint an officer denominated the superintendent of the poor of the city and town of Newburgh.

That it was the duty of such officer to reside at the almshouse and have the control and management of the paupers therein, who numbered then about one hundred, to act as secretary of the board and keep its minutes, to keep the accounts of the board, to purchase supplies for the almshouse and temporary relief, to keep an office in the city and receive applications for relief, to examine into the circumstances of the applicants and keep a record of such examinations and generally to perform the duties devolving by law upon the board as its executive officer.

That the office was a very important one and required for its proper discharge very considerable ability, business capacity and experience.

The affidavit' further stated that the board met at its annual meeting on the 4th day of April, 1892, for the purpose, among other things, of appointing a superintendent of the poor; that the relator applied for such appointment upon the ground that he was an honorably discharged union soldier; that the relator was personally known to most of the members of the board, and in their judgment he does not possess sufficient business capacity, knowledge and experience to fit him for a proper discharge of the duties of that office.

That the other applicants were William A. Pressler, who had held the office for the last two years, and Chauncey F. Gardner, who held the office twelve years and upwards continuously and who resigned about two years ago in consequence of ill health, but whose health was now restored and he applied for reinstatement to the office.

That Gardner during his long service gave satisfaction to the board and to the public, and became well acquainted with the poor law system and was able greatly to aid and facilitate in the discharge of the duties of the board.

That a majority of the board fairly and in good faith came to the conclusion that the relator was not competent for the position of such superintendent, and that Gardner was the most competent of the three persons seeking the appointment, and the board accordingly appointed him in good faith and without intending to violate the law.

The statute under which this proceeding was instituted is this: il Sec. 1. In every public department and upon all public works of the state of New York, and of the cities, towns and villages ■thereof, and also in non-competitive examinations under, the civil service laws, rules or regulations of the same, wherever they apply, honorably discharged union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment, which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position-involved.

Sec. 2. All officials or other persons having power of appointment to or employment in the public service, as" set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.

“ Sec. 3. This act shall take effect immediately.” Chapter 464, Laws of 1887.

It was the intention of this statute to give to honorably discharged union soldiers and sailors a preference for appointment and employment in every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules and regulations of the same, wherever they apply, without disqualification by reason of age, loss of limb or other physical impairment, which does not in fact incapacitate, provided they possess the business capacity necessary to discharge the duties of the position involved. But the proviso governs the operation of the whole statute. If the soldier or sailor possesses the business capacity necessary to discharge the duties of the position involved, he has the preference. If he is destitute of such capacity he is not within the provisions of the law and can derive no benefit therefrom.

Capability is the prerequisite to the reception of the preference.

It was not the design of the statute to debase the public service by requiring the appointment of incompetent men to discharge the duties of public positions, or to elevate heroism above competency independent of other considerations.

Patriotism is to be honored and rewarded in appropriate ways, but not by the distribution of public offices.

Such being the manifest design of the statute, its application to this case is simple and easy.

It was the duty of the almshouse commissioners to appoint a superintendent of the poor of the city and town of Newburgh. It was an important office and required the exercise of great care, discretion, knowledge and business capacity.

The incumbent is required to take charge of the inmates of the almshouse, disburse the poor fund and keep the accounts, act as secretary and executive officer of the board and purchase the supplies.

The selection of a fit person to discharge such duties and fill the office was entrusted to the board, and it was the peculiar province of that body to make the selection of the officer subject to no judicial control.

The power of appointment was vested in the commissioners, they were personally acquainted with the relator, and in their judgment he did not possess sufficient business capacity, knowledge and experience to fit him for a proper discharge of the duties of this office, and they said so in'their affidavit in opposition to the motion, and that fact was undisputed.

Discretion and power to determine the qualification of applicants for the office in question being vested, in the commissioners it was their duty to exercise the power, and if the relator was found wanting and unqualified by them, he cannot force his appointment. Having decided the question upon which they were authorized to pass in good faith, their decision cannot be overruled by this court.

Subordinate bodies and tribunals clothed with the power to exercise judgment and discretion cannot be compelled by mandamus to decide in any particular way. People v. Trustees of Saratoga, 54 Hun, 16; 26 St. Rep., 54; People v. Common Council, 78 N. Y., 33.

So far the case is plain upon a consideration of the statute alone, but the reported cases which have arisen under the law have all been decided in consonance with the views here expressed.

In the case of Barden, 30 St. Rep., 52, where the writ of mandamus was issued, the fitness of the relator for the position he sought was conceded and assumed. Here it was denied by the defendant and not even asserted by the relator. In the ease of The People v. Trustees of Saratoga, supra, it was held where two or more persons apply for an office, one of whom is an honorably discharged union soldier and all of whom are equally qualified, the soldier should be preferred, but the act should not be construed to require the soldier’s appointment where he is not as well qualified for the office as one of the others. It was there also further held that the decision of the trustees in that case upon the question of fact respecting the relator’s qualification for the office, if wrong, could not be corrected in that proceeding for a mandamus.

The opinion pin that case delivered by Judge Putnam at the special term was adopted by the general term, and the order denying the motion for a mandamus was affirmed on that opinion, which is clear, full and exhaustive and meets with our full approval.

The principles enunciated in that opinion are applicable to this ease, and decisive of this appeal. The case of The People v. Wendell, 57 Hun, 363; 32 St. Rep., 129, is in accord with our views.

Since the preparation of the foregoing opinion the decision of the court of appeals in the case of the People ex rel. Wren v. Goetting, 44 St. Rep., 503, has been received, and it was there decided that mandamus was not the proper remedy in a case similar to this, and in the opinion it is said: “ The office claimed is filled by .another person holding under color of right, and the question of the title to the office turns upon the construction of statutory provisions. It would be highly inappropriate to determine such a •question in a mandamus proceeding. The appropriate remedy, und an adequate one, is by information in the nature of quo warranto, in which proceeding the incumbent of the office can be heard in his own behalf upon the disputed question.

In no view, therefore, can the relator maintain this proceeding, and the order should be reversed, with ten dollars costs and disbursements, and the motion for a writ of mandamus should be ■denied, with ten dollars costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


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    Charles W. N. Akberg, Resp’t, v. The John Kress Brewing Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Principal and agent—Liability of principal for representations OF AGENT.
    Where an agent, duly authorized, sells a chattel mortgage, and his principal receives the proceeds thereof, the latter is bound by the representation of the agent that the mortgage is good and his agreement to repay the money in case it was not.
    3. Evidence—Assignment of chattel mortgage.
    Evidence of such agreement is admissible, although the assignment of the mortgage is silent on that subject.
    Appeal from, judgment in favor of plaintiff.
    Action to recover money paid upon an assignment of a chattel mortgage.

      Forster, Hotaling & Klamke, for app’lt; J. Edward Swanstrom, for resp’t.
   Barnard, P. J.

—-The defendant made a loan of $600 to Carl JSTelsson and took from him a chattel mortgage as security. The mortgage conveyed the household interest of the Brooklyn House at Fort Hamilton, Kings county, and certain articles of personal property upon the premises. The mortgage was dated 28th of May, 1890, and was due at once. On the 16th of July, 1890, the plaintiff bought the mortgage of the defendant and paid $600 therefor. The purchase was made by plaintiff at the request of Alex. Egar, who was an employee of the defendant Egar represented to plaintiff that the mortgage was perfectly good, and that if it was not good the plaintiff would get his money back. The mortgage was not good. The title to the chattels were in a person other than Helsson, the mortgagor. The assignment of the mortgage was in writing and did not contain this representation that the mortgage was good and that the money would be paid back if it was not good. The proof of the authority of Egar to make the representation was sufficient. He negotiated the sale of the mortgage for the defendants, and the company received the proceeds of the sale. He had a written authorization to act for the defendant in the transaction. The proof sustains the finding of the jury that the representation as to the mortgage and the repayment of the money in case it was not good were made. The plaintiff so testifies, and he is thus supported by Yon Burlow.

The warranty of the mortgage to be good was properly received, although the assignment of the mortgage was silent on the subject. The fact that the entire agreement was contained in the assignment is not apparent from the paper itself. That only pur-, ported to transfer a title to a chattel mortgage. The agreement that the mortgage was upon goods which the mortgagor owned would be assumed. A paroi undertaking that it did so is not to be construed as a part of the contract of sale. If the sale implied title to the goods contained in the mortgage no outside agreement was needed. If the sale did not have that effect, an agreement of warranty that the title was good was outside of the agreement of sale merely between the parties. Chapin v. Dobson, 78 N. Y., 83; Brigg v. Hilton, 99 id., 517; Routledge v. Worthington. 119 id., 592; 30 St. Rep., 195.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Cullen, J., not sitting.


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    Charles H. Gross, Resp’t, v. The Pennsylvania, Poughkeepsie & Boston Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Negligence—Joint tout feasors—Release of one by satisfaction.
    Plaintiff, who was an employee of another road, recovered judgment against defendant for injuries sustained by reason of the failure of defendant’s engineer to flag his engine while running on the road of the other company. Thereafter plaintiff recovered against his employer for negligence in permitting defendant’s engine to run on its road at that time and the judgment therein was satisfied and an assignment of this judgment taken by said employer. Held, that the injury to plaintiff proceeded from the combined negligence of both companies and was a clear case of joint tort, and a satisfaction by one discharged plaintiff’s claim against the other; that the liabilities of the companies as between themselves could only be determined in an action brought for that purpose, and that the judgment herein should be cancelled.
    Appeal from order denying motion to cancel the judgment entered in this action.

      Greene & Bedell, for app’lt; M. A. Fowler, for resp’t.
   Cullen, J.

—This is an appeal from an order denying defendant’s motion to cancel the judgment entered in this action.

The plaintiff, an engineer on the Central ¡New England, etc., Railroad Company, was injured by a collision occurring on its road with an engine of the defendant company, which the first named company had allowed to enter upon its tracks to obtain water. The recovery in this action was based upon the negligence of the defendant’s engineer in failing to flag ” his engine. Subsequently the plaintiff brought an action against his employer, the ¡New England, etc., Company, and recovered, on the claim that that company was negligent in permitting the engine of the other road to run upon its tracks at the particular time. The ¡New England, etc., Company settled with the plaintiff and took from him a release and also an assignment of the judgment against the defendant.

We think the motion should have been granted. Though the negligence of the two companies consisted of wholly distinct acts, still the -injury and tort which constituted the plaintiff’s cause of action was single.' He could not have recovered part of his damages from one company, and part from the other, because the whole injury proceeded from the combined negligence of both, not part from the negligence of each. It was, therefore, a clear case of a joint tort, and a satisfaction' by one tort feasor discharged the plaintiff’s claim against the other. Woods v. Pangburn, 75 N. Y., 495; Webster v. Hudson River R. R. Co., 38 id., 260; Barrett v. Third Ave R. R. Co., 45 id., 628.

It is claimed by the assignee of the judgment that, as between it and the defendant, it was the negligence of the latter that caused the injury, for the condition of the permit to flag ” the engine was not complied with, and that hence it is not precluded from recovering indemnity or contribution from its co-tort-feasor. This may well be, but has no effect on this application. On this motion, the Central New England, etc., Company has but the same rights as its assignor, the plaintiff. As the plaintiff could not collect anything from the defendant after satisfaction by the other -company, his assigns cannot.

It is not possible upon this application to determine the liabilities of the two companies between themselves. It may be that the defendant by accepting the permission impliedly covenanted to use the privilege properly and with care, and must indemnify the New England Company for any loss resulting from default in these respects. But to enforce such liability an action must be brought. The defendant is entitled to a trial of that issue. The issue was not and could not have been determined in either of the actions brought by the plaintiff against the two companies.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


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    Leonora S. Gray, Resp’t, v. William T. Baker et al., App’lts

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    ’ IilBEL—MaRBIED WOMBS.
    An article charging that a married woman was detected by her husband in a room in a hotel with another man, having registered as husband and wife, and that the husband confronted them as they came out of the room in the morning, if false and maliciously published, tends to bring her into public scorn and disgrace, and is libelous.
    Appeal from interlocutory judgment overruling demurrer to complaint.

      H. F. & J. Coupe, for app’lts; D. J. Newland, for resp’t.
   Barnard, P. J.

—The complaint states a good cause of action. The defendants published in their newspaper a charge that the plaintiff, when she was the wife of one Herbert, was detected by her husband in a room in a hotel with one Gray. That they had registered under an assumed name as husband and wife, and that Herbert confronted them when they came out of the room at the hotel in the morning. The article describes the plaintiff as a faithless spouse and as a guilty companion of Gray. It is too plain to need any authority that such language concerning a married woman, if false and maliciously published, tends to bring her into public scorn and disgrace; and this makes a libelous publication. Morey v. Morning Journal, 123 N. Y., 207; 33 St. Rep., 49.

The interlocutory judgment overruling the demurrer with leave to answer is affirmed, with costs. Leave is, however, given upon payment of costs for the defendants to answer the complaint in twenty days after the decision is entered herein.

Dykman, J., concurs; Cullen, J., not sitting.


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    Thomas Poole Soper et al., App’lts, v. George W. Brown, Ex’r, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Will—Issue of child.
    One P., by his will, left certain real property to his executors under four separate trusts, in trust each for the life of a daughter with remainder in fee to her issue, and in default of issue to his grandchildren then living. He gave to plaintiff’s mother, whom he did not designate as a daughter, twenty-five dollars, gave the household furniture to two daughters, and the remainder of his personal property to the executors in trust for his four daughters and the survivor, with remainder to all his grandchildren. One of the daughters having died leaving grandchildren, but no children, Held, that the word issue was sufficiently broad to include remote descendants, and that the grandchildren of the daughter so dying took the real property held in trust for her.
    Appeal from judgment in favor of defendant, entered upon a decision of the court.

      Holmes & Adams, for app’lts; George R. Brown, for resp’t.
   Dykman, J.

—This is an appeal from a judgment in favor of the defendant, entered upon a decision of the court.

The action was brought to recover a lot of land in the city of Brooklyn which was originally a part of a farm belonging to Thomas Poole, who died in 1831, seized and possessed of the premises, leaving a last will and testament, which has been duly proved and admitted to probate, by which he devised the farm including the property in question to his executors in trust to permit his daughter Eliza to occupy the same for and during her natural life in their discretion, or to rent the same during the same period and take and receive the rents and profits accruing from the same and therewith make all necessary repairs, and pay all taxes and other necessary charges and expenses in and about the same, and after deducting such payments to annually pay over the residue of the rents and profits to Eliza for and during her natural life, to her sole and separate use and benefit.

Then follows the clause which produces the contention in this suit, in these words : “And upon the death of my said daughter Eliza, my further will is that the aforesaid two dwelling houses and piece or parcel of land and meadows, and piece or parcel of land and woodland above described, and in this clause of my will devised for the use and benefit of my said daughter Eliza, with the appurtenances thereunto belonging, shall go in fee simple, as tenants in common, to the lawful issue of my said daughter Eliza, if more than one, share and share alike, and for want or in default of such issue, then to all my grandchildren who may then be living, as tenants in common, his, her or their heirs or assigns forever.”

Substituting the names of the other three daughters respectively and the descriptions of the other parcels of real property, there are three other devises in the same language.

The residuary clause of the will provides for the conversion, of all the personal property into money and for the collection of all debts, so as to make one total sum, and after the payment of debts, legacies, etc., the residue is bequeathed to the executors in trust to°invest and pay and apply the income annually to Mary, Eliza, M trgaret and Sarah in equal shares during their joint lives and to the survivors and survivor of them; “ and after tlm decease of such survivor, my will is that the said moneys so invested or placed out at interest as aforesaid shall go to and be equally divided between all my grandchildren then living.”

Tilomas Poole, the testator, left him surviving four daughters to whom he gave life estates, and at his death Eliza had two children living, both of whom died during her lifetime leaving children, and Eliza died in 1882.

The plaintiffs in this action are the children of Letitia Soper, wife of Enoch Soper, who was a daughter of the testator to whom he gave a legacy of twenty-five dollars, and consequently the plaintiffs are two of the six grandchildren of the testator who were living at the death of his daughter Eliza.

The defendants derived their title from the grandchildren of Eliza and their contention is that the descendants of Eliza succeeded to the title under the word issue, while the plaintiffs claim that by the word issue the testator meant children.

The determination of the appeal therefore depends upon the ascertainment of the intention of the testator in the use of the word issue where it is employed in this will.

It is a flexible word whose signification is sufficiently broad to include remote offspring.

It denotes descendants much more naturally than the word children, and if the testator had intended to give the property to the immediate issue of his daughter he would have used the term children to manifest that design.

One fact remains yet unnoticed: The second item of the will of Thomas Poole is this; “ I give and bequeath unto Letitia Soper, the wife of Enoch Soper of Williamsburgh in the town of Bush-wick in the said county of Kings, the sum of twenty-five dollars as a small memento of my esteem.”

Letitia Soper was a daughter of the testator, as the parties admit, but the disclosure of the fact was studiously avoided by him in this bequest.

The third clause commences thus: “ I give and bequeath unto my two daughters Margaret and Sarah, all my household and kitchen furniture.”

The marked contrast between the two bequests shows a careful and considerate use of words.

Then by the next four items of his will the testator divided his real property into four parts, and gave a life estate in each fourth to each of his four daughters, Mary, Eliza, Margaret and Sarah, and the fee to their lawful issue.

Thus the testator excluded his daughter Letitia from any share of his real property, and divided it between Ms four daughters for their use and enjoyment during their respective lives with a limitation over in favor of their issue, and, it is a natural conclusion that he intended to give the shave apportioned to each daughter for life to their offspring immediate or remote, and not to the descendants of the child excluded.

We conclude, after a careful examination and consideration of the case, that the testator designed that the real property which he left in trust for each of his four daughters should at their deaths respectively go to their descendants.

We have not examined the question in the light of authority hecaush its solution depends so much upon the intention of the testator in the use of the word that we can derive but little aid from adjudicated cases.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs ; Cullen, J., not sitting.


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    Susan Wrench, Pl’ff, v. Ricka Samenfeld, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Malicious prosecution—Probable cause.
    Defendant caused plaintiff’s arrest for maliciously breaking down and injuring her fence and building, and the charge was decided in plaintiff’s-favor. In an action for malicious prosecution it appeared that the parties were owners of adjoining real estate; that defendant rebuilt the fence which had blown down, and that plaintiff tore it down and with it the tin leader on defendant’s house. Held, that defendant had probable cause for causing the arrest.
    Motion by plaintiff for a new trial on exceptions after judgment in favor of defendant.

      S. D. Levy (James W. Ridgway, of counsel), for pl’ff; Theodore Burgmyer (F. E. Dana, of counsel), for def’t.
   Barnard, P. J.

—This action was brought to recover for false imprisonment and for malicious prosecution. The complaint upon which the arrest, was made charged upon oath that the plaintiff maliciously brokedown and injured her fence and building. No objection was made that the warrant was issued without an examination of the complainant or other witnesses. I assume from the case that the complainant (defendant) made oath in support of her complaint in the very words of the original complaint, and there is no objection to this, if the complaint be supported. Was the action for a malicious prosecution made out? Two of the four requisites to support such an action were established upon the trial. The defendant caused the arrest of the plaintiff upon a criminal charge, and the charge has been finally decided in the plaintiff’s favor. There is no proof to show express malice other than-what may be inferred from the lack of probable cause. The case therefore rests upon the fact whether or not an absence of probable cause was proven. The parties are adjoining owners of land. The fence was blown down and was rebuilt again by defendant in the same place. The plaintiff said she would tear the fence down if it went up. A slip was nailed on the house where the old fence was. This was destroyed by plaintiff, also the fence, and with it the ’tin leader on the defendant’s house. If a person unlawfully and wilfully destroys or injures the real or personal property of another, he is guilty of a criminal offence. Penal Code, § 654.

Even if a trial court should hold that the offence was no more than a dispute as to the title to land, a complainant whose property has been destroyed with no basis whatever for a claim of right should be held to have had a right, without fear, to put the facts before a court for adjudication. Murray v. Long, 1 Wend., 140; Baldwin v. Weed, 17 id., 224; Carl v. Ayers, 53 N. Y., 14; Fagnan v. Knox, 66 id., 525.

The action was not therefore supported by evidence, and the exception should be overruled, and judgment should be affirmed.

Dykman, J., concurs; Cullen, J., not sitting.