author: Fursman, J.

text:
    In the Matter of Edward B. Cantine.

      (Supreme Court, Albany Special Term,

      Filed October 23, 1895.)

    Election—Nominations.
    Any political party or other nominating body, which at the last general election polled 10,000 votes, may make nominations in a district, though it did not poll therein one per cent, of the votes.
    Objection's to the certificates of nomination of the Democratic Party Reform Organization for officers to be elected in the county of Albany, city of Albany and each ward of said city, and the city of Cohoes and each ward of said city.

      James J. Farreri, for app’lt; Arthur L. Andrews, for resp’t.
   Fursman, J.

In the fall of 1894, a body of citizens calling themselves the “ Democratic Party Reform Organization,” nominated a state ticket in this state, upon which appeared the name of Everett P. Wheeler as its candidate for governor. A.t the election in November of that year, the said ticket received more than 10,000 votes in the state, as appears by the certificate of the secretary of state, used on this motion. In the city and county of Albany and in the city of Cohoes there was no local organization known and designated as the “ Democratic Party Reform Organization,” but the state ticket above mentioned received in the county of Albany a little more than 200 votes, being much less than one per cent, of the entire votes cast in said county. On the 10th of October, 1895, a' body of citizens of the city and county of Albany, and of the city of Cohoes filed with the county clerk of the county of Albany certificates of nominations for offices to be voted for in the county and in the city of Albany, and in each ward of said city, and in the city of Cohoes, and each ward of said city, at the ensuing election. Each of .such certificates was duly signed and verified by the presiding-officers and secretaries of the conventions at which such nominations were made, and was duly filed in the office of the clerk of the county of Albany. Thereafter one Edward B. Cantine filed objections to such nominations, upon the grounds that said nominations were not made by a convention or primary, or by a duly authorized committee of any convention or primary, of any political party or other nominating party which at the last general election polled 10,000 votes in the county or in said cities, "or in the respective districts for which said conventions or primaries were held ; and also upon the ground that the party name adopted by such conventions had already been selected by another or different political party or portion of a party. Upon a hearing before the county clerk, these objections were sustained, and it was decided and determined by him that the said certificates are void, and of no effect, and that the names therein mentioned cannot be printed on the official ballots as -the candidates of said Democratic Party Reform Organization. Upon such decision being made, a petition has been presented, praying that said decision be reviewed.

The second objection was not urged upon the argument of this motion, and it was conceded that the designation referred to above was a designation adopted upon the nomination of the ticket headed by said Everett P. Wheeler in the fall of 1894. It is sufficient to say, as to this objection, that these certifiuates. purport to be and are certificates of local nominations'of the same organization, and the designation cannot, therefore, properly be said to have been previously adopted" by another or different political party.

The objection seriously urged upon this argument is that the body of citizens designated in the fall of 1894, and then running a state ticket,.known as the “ Democratic Party Reform Organiza-' tian,” did not poll 10,000 votes in the territory covered by the certificates presented to the county clerk of Albany county in the present instance. The decision of this question must be governed by the language of section 56 of chapter 8l0 of the Laws of 1895. That section provides that:

“ Nominations of candidates for public office may be made by a convention or primary, or by a duly authorized committee of such convention or primary, of any political party or other nominating body which, at the last general election before the holding. of such convention or primary, polled ten thousand votes in the state, or one per cent, of the entire votes cast in the district thereof for which said convention or primary is hold. Such nominations shall be known as party nominations.”

It is conceded that the Democratic Party Reform Organization polled more than 10,000 votes in the state at the last general election, but it did not poll one per cent, of the entire votes cast in the district embracing the city and county of Albany and the city of Cohoes. It «will be observed that this statute does not require that candidates shall be nominated by a convention or primary or by a duly authorized committee of any convention or primary of any political party, but authorizes such nominations to be made by any convention or primary of any nominating body. If we eliminate that portion of this section which refers to political parties as such, it will clearly appear that any nominating body may place in nomination a ticket to be voted for, provided the other requirements of the section are met. Making such elimination, the section will read:

“ Nominations of candidates for public office may be made by a convention or primary of any nominating body which, at the last general election before the holding of such convention or primary, polled ten thousand votes,” etc.

It appears from these certificates that there was a nominating body holding a convention, having a president and secretary, and that such convention put in nomination local tickets in the city and county of Albany and in the city of Cohoes, and in the several wards of said cities. This statute authorizes such a convention where the party of which that claims to be a part polled 10.000 votes in the state, or one per cent, of the entire votes cast in the district for which such convention is held, and declares that such nominations shall be known as “ party nominations.” The statute is in the alternative. It authorizes nominations to be made by a convention or primary, or by a committee of any convention or primary, of any party or nominating body which polled 10.000 votes in the state, “ or ” one per cent, of the entire vote cast in the district, etc. This disjunctive conjunction has peculiar force and significance as employed in this statute. It is as if it had been preceded by the word “ either,” and the statute should read :

“ Nominations of candidates for public office may be made by any convention or primary, or by a duly authorized committee of such convention or primary, of any political party or other nominating body which, at the last general election before the holding of such convention or primary, ‘ either ’ polled ten thousand votes in the state, ‘or’ one per cent, of the entire votes cast in the district,” etc.

It was the intention of the legislature to authorize a nomination by any political party or other nominating body which polled 10,000 votes in the state, whether in particular county or city or district one per cent of the whole number of votes were cast by such party or not. And in case 10,000 votes in the state were not cast for the candidates of such party or other nominating body, but one per cent, of the entire votes cast in any district thereof were cast for such' candidates, a local ticket for such district might be nominated, although a state ticket could not be. In this case, more than 10,000 votes for the candidates of the Democratic Party Reform Organization were cast in the state, and therefore local conventions of that party may be local nominations to be voted for in particular localities, such as counties and wards, although less than one per cent, of the entire votes cast in such counties, cities or wards were cast for the-state ticket of such organization, and such nominations must be known as “party nominations.” If this were not so, then, although more than 10,000 votes were cast for the state ticket of the Democratic Party Reform Organization in the state, citizens who voted for that ticket, and who are members of that organization, could not have any local organization, nor nominate any local ticket, in any case where less than one per cent, of the entire votes of the particular district were cast in favor of the state ticket of such organization; and it would follow that, although the state ticket of such organization should be elected, yet any county or counties, city or cities, or wards which failed to cast as much as one per cent, of the whole number of votes cast in such district in favor of the ticket thus elected would be deprived of the right or privilege of having local organizations or making local nominations. This is not what the statute intends. It is clear to my mind that the legislature meant, by the alternative • expressed in this statute, to confer upon members of any party or organization which cast 10,000 votes in the entire state the right and privilege of making local nominations in that party and under that party designation.

I am in possession of an opinion delivered by the present attorney general in September last, expressing perhaps more sucointly than I have done the views above set forth. In that opinion, after quoting section 56, above referred to, the learned attorney general says:

“I am of the opinion that any political party whose candidates for state offices polled 10,000 or more votes at the last general election may by a convention of its members, a duly-authorized committee of the party, or by a primary meeting of its members, place in nomination a full set of candidates for all state offices to be filled at a general. election; and that the certificates of such nomination, when made according to the provisions of that section, may be filed with the secretary of state, as. provided by sectian 58 of the election law as amended, and entitle such party to a separate column upon the official ballot. With regard to the several districts of the state, such as the county, the senate and assembly districts, and the judicial districts, I am of the opinion that such party may nominate its candidates for the several offices therein, either by a convention or primary held therefor or by a duly-authorized committee of its convention held in either the state or in a district thereof; and that, upon duly filing the certificates of such nominations, the names of the candidates for those offices may be printed in the column containing the names of 'the party’s candidates for state offices, even though the party did not cast as much as one per cent, of the entire vote polled in the par? ticular district.”

This expresses clearly the correct interpretation of this statute.

I think the decision of the county clerk must be reversed, and an order entered requiring him to print such nominations on the official ballots as candidates of the Democratic Party Reform Organization.


source: Caselaw Access Project

author: Griffith, J,

license: Public Domain

text:
    The People, Pl’ff, v. James F. Cleary, Def’t.

      (Court of Sessions, Rensselaer County,

      Filed July, 1895.)

    1. Statutes—Repeal—Implication.
    Section 351 of ;he Penal Code, which makes pool selling at horse races. a misdemeanor, was impliedly repealed by chap. 479 of 1887, as amended by chap. 469 of 1893.
    2. Same.
    Chap. 479 of 1887, as amended by chap. 469 of 1893; was impliedly repealed by section 9, art. 1 of Revised Constitution, which without exception forbade pool selling within the state.
    3. Same—Construction act.
    Section 31 of the Construction Act (chap. 677 of 1892), which provides that the repeal of a statute shall not affect any penalty, forfeiture or imprisonment, incurred before the time the repeal takes effect, does not apply to statutes enacted by a subsequent legislature.
    James F. Oleary was convicted of recording and registering bets and wagers and of selling pools on horse races on April 25, 1895. Defendant demurs to the indictment.

      James C. Fur smart, Charles F. Patterson, and William J. Roche, for def’t; John P. Kelly, Dist. Atty., and George B. Wellington, for people.
   Griffith, J,

The 'language used in the indictment to define the crime charged is taken from chapter 479 of the Laws of 1887, as amended by chapter 469 of the Laws of 1893, which 'is commonly called the “ Ives Pool Law.” It therefore follows that the pleader had in his mind an offense against this particular statute while preparing the indictment. The rule does not require that the words used in the statute need be strictly pursued in an indictment (Code Or. Proc. § 283), but the indictment is good if it follows the languase of the statute defining the crime. People v. Farrell, 28 St. Rep. 43. The statute of 1893, supra, makes' the offense charged in the indictment a felony, while section 351 of the Penal Code, describing nearly the same offense, makes it a misdemeanor. The question, under which statute is the indictment drawn ? becomes an important one in considering another principle urged in the defendant’s behalf upon the hearing. Section 351 of the Penal Code provides that any person who keeps any room, shed, tenement, booth, or building, - or any part thereof, or who occupies any place upon any public or private grounds within the state with books, apparatus, or paraphernalia for the purpose of recording or registering bets or wagers, or of selling pools, and any person who records or registers bets or wagers or sells pools upon the result of any trial or contest of skill, speed, or power of endurance of man or beast, or being the owner, lessee, or occupant of any room, shed, or tenement, tent, booth or building, or part thereof, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps, exhibits, or employs any device or apparatus for the pur.pose of recording or registering such bets or wagers, or the selling of pools, or becomes the custodian or depositary, for hire or reward, of any money, property, or thing of value staked, wagered, or pledged upon any such result, shall be punished by imprisonment for one year, or by a fine, not exceeding $2,000, or both. In the year 1887" the legislature passed a law (chapter 479) by which the operation of this section of the Penal Code was suspended, and permitting recording or registering bets or wagers and selling pools upon the result of contests of skill, speed, and power of' endurance of horses upon the race tracks and grounds on which racing is had, owned or leased-or conducted by racing 'associations incorporated under the laws of the state of New York for the purpose of improving the breed of horses; but continued the inhibitions of the Penal Code under more severe penalties if such pooling selling was conducted elsewhere than on the race tracks and grounds of such racing associations. In 1893 an amendment to the Laws of 1887 was passed, which is known as “chapter 469,’’which,while it permitted pool selling and recording and registering bets on contests of speed and endurance of horses upon race tracks and grounds owned,. leased, or conducted by racing associations incorporated under the laws of the state of New York for the purpose,of improving the breed of horses, declared any person who should engage in such pool selling, book making, or receiving or recording bets or wagers elsewhere, to be guilty of a felony. A careful examination of chapter 469 of the Laws of 1893, and a comparison of the language of that statute with the wording of the indictment, lead me to the conclusion before stated, that the pleader had not only this particular statute in mind when preparing the bill, but followed its language in defining the crime.

The question is suggested, what effect did the Ives pool law, as amended, have upon section 351 of the Penal Code ? Both statutes are general in their provisions, and whether a subsequent statute repeals a prior one in the absence of express words depends upon the intention of the legislature, and one of the tests frequently resorted to to ascertain whether there is a repeal by implication is to inquire whether the acts may both be executed, without involving repugnancy of rights or remedies.

It would seem that the Ives pool law was intended to revise the then existing statutes upon the subject of pool selling and book making, and consolidate them, for by section 851 of the Penal Code it was made unlawful for .any person to- register or record bets or wagers or sell pools at any time or at any place, while the Ives pool law permitted such practices on certain days and times upon race tracks or grounds on which racing is had, owned, leased or conducted by racing associations incorporated, etc., but prohibited this species of betting and gaming elsewhere, virtually reenacting the provisions of section 351 and applying its prohibitions for all places except the race tracks and grounds aforesaid, and changing the character of the offense from a misdemeanor to a felony. -It does seems that after April 22, 1893, the only penal statute under which a prosecution for pool selling and book making could be made was the amended Ives pool law. The decisions seem to hold that, where prior laws are revised and consolidated into a new act, such act is to be deemed to contain1 the entire law upon the subject, and that a prior provision of law, which is dropped is to regarded as repealed. In Ellis v. Paige, 1 Pick. 43, it is said:

“It is a well-settled rule that when any statute is revised, or one act framed from another, some parts being omitted, the parts omitted are not to be revived by construction, but are to be considered as annulled. To hold otherwise would be to impute to the legislature gross carelessness or ignorance, which is altogether inadmissible.”

In Bartlet v. King, 12 Mass. 537, it was held that:

“A subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must on principles of law, as well as in reason and common sense, operate to repeal the former.”

In Re New York Institution for Deaf and Dumb, 121 N. Y. 234; 30 St. Rep. 921, Judge Earl says that:

“Where two statutes relate to the same subject-matter, though not in terms repugnant and inconsistent, if the later one is plainly intended to prescribe the only rule that shall govern, it will repeal the earlier one.”

Ho end of precedents can be cited to sustain the principle that, when a revising statute covers the whole subject-matter of antecedent statutes, the revising statutes virtually repeal the former enactments, without any express provision to that effect. Butler v. Russel, 3 Cliff. 251, Fed. Cas. No. 2,243; Patterson v. Tatum, 3 Sawy. 164, Fed. Cas. No. 10,830; Daviess v. Fairborn, 3 How. 636; Norris v. Crocker, 13 How. 429; King v. Cornell, 106 U. S. 395; Heckmann v. Pinkney, 81 N. Y. 211; People v. Gold & Stock Telegraph Co., 98 id 67; People v. Jaehne, 103 id. 182; 3 St. Rep. 11; In re Southworth, 5 Hun, 55.

In construing statutes the following rule is laid down:

“Where a later statute contains no reference to the former statute, and defines an offense containing some of the elements constituting the offense defined in such former statute and other elements, it is a new and substantive offense. * * * So if the later-statute prescribe a punishment for acts with only a part of •the ingredients or incidents essential to' constitute the offense defined in a fbrmer • statute; but if the same offense, identified by name o'r otherwise, or if a felony is changed to a misdemeanor, or vice versa, the statute'making such changes has the effect to repeal the former statute. * * * Where a new law covers the whole subject-matter of an old one, adds riew offenses and prescribes different penalties for those enumerated in the old law, then such former law is repealed by implication.” Suth. St. Const. § 143.

Applying this rule for a construction of the laws prohibiting pool selling and book making, we are led, “upon principles of law as well as in reason and common sense,” to the conclusion that the Ives pool law repealed, all previous statutes upon that subject, and therefore section 351 of the Penal Code was not in force or effect at the time of the commission of the criminal offense charged in' the indictment. Section 9 of article 1 of the new constitution went into effect January 1,1895, and forever forbade pool selling, book making, or any other kind of gambling within the state. This abrogated the provisions of the Ives pool law, which permitted pool selling, book making and gambling at certain times and places. This provision of the constitution is the law of the state upon this subject, and must be so treated, as effectually as if it were ingrafted into a statute. Cooley, Const-. Lim. 55; People v. Barber, 48 Hun, 198; 15 St. Rep. 601. Section 16 of article 1 the constitution sets at rest all contention on this point, and by its very language abrogates all parts of the common law and statutes repugnant to the constitution. Certain is it that -the first six. sections of the Ives pool law are abrogated by the new constitution, and the remaining section (7) forbids any person from .engaging' in pool selling or book making at any time, or place, “ except as hereinbefore stated.” Now, if the six sections preceding it are invalid, what meaning can be given to the words following relative to race tracks or grounds 1 Again, section 7 declares it to be unlawful for any person to receive money to forward to any race course, whether managed- and conducted in obedience to the provisions of this act or not. This section cannot stand alone. It is so thoroughly connected with the previous sections that it must fall with them; the rule being: “ Where all the provisions of an act are connected as parts of a single scheme, the incidental provisions must fall with the failure of the main purpose.” Suth. St. Const. § 174. The counsel for the people urges with great earnestness that by reason of section 728 of the Penal Code the Ives pool law should not be deemed to have repealed, altered, or amended section 351, because the statute did not explicitly refer thereto, and directly repeal, alter, or amend section 351. Chapter 479 of" the Laws of 1887 did explicitly refer to sections of the Penal Code, and did suspend the operation thereof in certain places.

If the counsel for the people is right in his contention, we are met by another obstacle, and that is by chapter 572 of the Laws of 1895, which purports to amend section 351 of the Penal Code, whicli amendment prescribes a different punishment for the offenses therein named, and, as the act contains no saving clause which refers to offenses of the same character committed before the amendment, it must be considered as an ex post facto law to the defendant accused in this indictment. The counsel for the people also urges that section 31 of the construction act (chapter 677, Laws 1892) must be considered as a saving clause sufficient to continue the penalties and punishments for offenses incurred prior to the time such repeal takes place. At first reading of that section one might be led to that conclusion, but upon examining a similar law (section 6, chapter 21, Laws 1828-29), and the construction put thereon by the court of appeals in the case of Mongeon v. People, 55 N. Y. 613, I conclude that section 31 related solely to acts repealed by said act, and had no respect to subsequent legislation; for, to use the language of Judge Allen in the Mongeon Case, The legislature could not declare in advance the intent of subsequent legislatures, or the effect of subsequent legislation upon existing statutes.’’ In 1893, when the Ives pool law was amended (chapter 469), a section was added providing that nothing in that act should be construed as affecting an offense committed at any time before the day the act took effect, and providing that all such offenses must be punished according to the provisions of law existing when the offense was committed. Again, by chapter 77 of the Laws of 1894, several subdivisions of section 41k of the Penal Code were repealed, and section 41m was amended, but no saving clause was enacted. About a month after, the legislature amended chapter 77 by adding a saving clause. Laws 1894, chap. 282, § 2. This shows clearly that the legislature and the commissioners to revise the statutes did not regard section 31 of the construction act (supra) as affecting subsequent legislation, for the passage of the several saving clauses aforesaid after the year 1892 would impute to the legislature gross carelessness or ignorance, which is inadmissible. Bartlet v. King, ubi supra. I am therefore of the opinion that the Ives pool law repealed the provisions of the Penal Code relative to pool selling and book making, and the adoption of the new constitution abrogated the Ives "pool law, and at the time of the commission of the offenses named in the indictment (while the same were made unlawful by the terms of the constitution) no punishment was prescribed for such offenses, and the subsequent amendment to section 351 of the Penal Code cannot affect the defendant, for the reason that its provisions, in so far as they relate to the crime charged in the indictment, are ex post facto. The case of Hartung v. People 22 N. Y. 95, expresses the law of this state upon the subject of repealing laws imposing penalties and changing the punishment for offenses without the enactment of a special clause in the act saving such proceedings after the repeal for offenses committed.before the repeal, and the maxim, “Stare decisis et non quieta movere,” must be followed. My examination leads me to rule that the indictment is good in form, but, it appearing on the face thereof that the facts stated therein did not constitute a crime punishable either by statute or common law at the time when the same are alleged in the indictment, judgment should be given on the demurrer by allowing the same, and an order to that effect should be entered upon the minutes of this court.

Ordered accordingly.

Gifford and Hoag, JJ., concur.


author: Lawrence, J.

text:
    Mary Finn, Pl’ff, v. James J. Lally et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed July, 1895.)

    Mortgages—Redemption—Mortgagee in possession.
    The facts, in this case, were held tor constitute the defendants, not mortgagees in possession, but occupants of the land under a claim of title.
    Action to redeem land from a mortgage.

      Fordham Morris and O. F. Sentell, for pl’ff; Theodore H. Friend and Jas. R. Marvin, for def’ts. •
   Lawrence, J.

This action is brought to redeem the northerly half of lot 31, the whole lot being 100 feet by 100, on the map of the village of Mount Hope, now in the Twenty-Fourth ward of the city of New York, from a mortgage given upon the whole lot, dated October 22, 1852, made-by Andrew Stewart to John Weeks to secure $150 and interest thereon. An action wag • brought in 1869 by Weeks, the mortgagee, to foreclose this mortgage, which resulted in a judgment of foreclosure, under which the mortgaged premises were sold and conveyed by the sheriff of Westchester to the mortgagee, John Weeks, who received the sheriff’s deed, dated December 11,• 1869, and duly recorded on January 14,1870. Andrew Stewart, the mortgagor, is the common source of title, and the plaintiff claims to be a grantee under him, through mesne conveyances of the mortgaged premises, subject to the mortgage, and alleges in her complaint that the action to foreclose the mortgage, and the decree rendered therein, and the sale and sheriff’s deed had been given thereunder, were null and void ; and she asks the court to permit her to redeem the northerly half of said lot 31 upon payment of what, if anything, shall be found due to the defendants, and that upon such-payment the defendants deliver up possession of the mortgaged premises, and execute a‘proper satisfaction of said mortgage, or such other instruments as may be necessary to reinvest the title of said northerly half of said mortgaged premises in the plaintiff.

The plaintiff claims that the action brought by Weeks for the foreclosure of the mortgage aforesaid was commenced under an order for the publication of the summons, which order was obtained on the 14th of June, 1869, and recited that it appeared by the affidavit of Caleb Purdy that the residence of said Andrew Stewart was unknown, and, after due diligence, could not be found. The affidavit of Purdy status that “the residence of the defendant, Andrew Stewart, is unknown to this deponent, nor can the same, after reasonable diligence, be ascertained by him, this deponent.” It is claimed that this order is a nullity, and conferred no jurisdiction upon the court.

It appears that, prior to the foreclosure suit, Stewart had conveyed to one Christina Ritter, wife of Robert Ritter, on October 25, 1856. This deed was not recorded until January 18, 1893. On the 13th of January, 1857, Christina Ritter conveyed the premises in question, subject to the mortgage to Weeks, to Robert H. Cousins, which deed was recorded on the 13th of January, 1857. It also appears that judgment was rendered against Cousins, in the marine court of the city of New York, in favor of one Sanders, and that a transcript thereof was afterwards filed in the county clerk’s office of New York and Westchester counties, and that on the 7th of September, 1857, the sheriff of Westchester county sold the premises to satisfy said judgment, and that they were bought at said sale by Henry P. Townsend, who thereupon received a deed from said sheriff therefor, which was not, however, recorded until January 18, 1893. Oh November 2, 1892, Henry P. Townsend conveyed the whole of said premises to the plaintiff by deed dated on that day, and recorded on January 18,1893. The plaintiff also obtained a quitclaim deed of the,whole of said premises from the widow and heirs of said Robert H. Cousins, which deed is not recorded, but which was offered in evidence upon the trial. It appears that the plaintiff, in 1892, sold the premisesc onveyed to her by Townsend to one Robert J. Koempel, at public auction. The title was searched for the purchaser by the Title Guarantee & Trust Company, who raised objections thereto on account of the alleged defective foreclosure suit, and to the outstanding title commencing with Ritter, and ending with Henry P. Townsend. Subsequently the old, unrecorded deed from Stewart to Ritter, before mentioned, was discovered. " .

Even if the objections to the order under which publication of the summons was directed, as against Andrew Stewart, are well taken, it does not seem to me, upon the evidence in the case, that the plaintiff is entitled to judgment It is objected upon the part of the defendants that the plaintiff’s deed from Henry ' P. Townsend, under which she claims title to the northerly half of said lot 31, is, as to that half, champertous and void, and for that reason she cannot maintain the present action. The Revised Statutes (1 Rev. St. 739, § 147) provide that “every grant of lands shall be absolutely void if at the time of the delivery thereof such lands shall be in the actual possession of a person claiming under a title adverse to that of the grantor.” See, also, 1 Birdseye’s St. 825, § 12. I think that the evidence establishes that the defendants Lally and Connell were actually in possession of their lots—such lots constituting the premises in question—at the time of the delivery o.f the plaintiff’s deed, claiming under a title adverse to that of the plaintiff's grantor, Townsend. John Finn, the husband and agent of the plaintiff, testifies that he called on both the defendants Lally and Connell in the fall of 1892, just previous to the date of plaintiff’s deed, to induce them, as the ownérs of their respective lots, to, join him in defraying the expense of securing such .deed from Townsend. On that occasion the defendants were in the dwelling houses upon their respective lots, and in possession of the same, which was evidence to him of the adverse claim and holding of the defendants. It is quite apparent that the object of Finn was to clear up the title of his wife to the other half -of the premises; and his conduct certainly shows that he at that time knew what the defendant’s claim was to the other (northerly) half of the lot. See, also, letters written by the counsel of the plaintiff to the defendants in respect to the northerly half of the lots.

It appeared - also from the evidence of Finn that he saw the construction of the houses erected by Lally and Barnecot (the defendant Connell’s grantor) going on a long-time before his interview with them in respect to clearing up the title.. The erection of the houses was a visible and notorious act in direct hostility to a claim of title of any other person. ' The deed from Delany to Barnecot is dated August 6,1874.- He erected his house and. inclosed his lot immediately, or almost immediately, after the date of the deed. This, it seems to me, was a clear and direct assertion of adverse title and possession. Barnecot also lived in-the house continuously, and paid the taxes, and expended various sums for repairs and insurance, up to December, 1891, when he made a conveyance to the defendant Connell, who thereupon entered into possession under his deed, and ever since has been, and still is, living upon the lot so conveyed to him. He also .executed-a mortgage for $1,400 to Thomas E. Thorn, which bears date October 26, .1874, and was recorded November 6, 1874, in New York county. This mortgage is still a lien upon the lot, and -is overdue and unpaid. The money secured by the mortgage was used to construct the dwelling house, and the mortgagee, Thorn, is not a party to this action. Daily’s title also comes from Delany, who purchased from Weeks, and took a full covenant warranty deed, dated October 9, 1871, and recorded October 12, 1871, in Westchester county. Delany conveyed to Barnecot the one-half of the northerly .half of said lot 31, as before stated; and on January .2, 1884, he conveyed the other half of the northerly half of said lot 31 to Dally. That deed was duly-recorded on the 3d of May, 1884, in .New York county. Dally subsequently executed two mortgages to the defendant Camilla T. Archer. Said mortgages, being dated, respectively, February 13,1886, and February 28, 1893, were duly recorded immediately after their execution and delivery. Dally has also lived in bis house continuously since the same was built by him, in 1884, and he has fenced and enclosed his lot. Michael Delany, to whom Weeks conveyed, is not only the grantor under whom the defendants claim their title, but in 1872 he conveyed to John Finn, the husband of the plaintiff, who was a witness upon the trial, the southerly half of lot 31.' Finn conveyed to his wife, Mary Finn, the southerly half of the premises, before she received her deed from Townsend.

On this state of facts, I do not think it can be said that the defendants Daily and Connell were mortgagees in possession. Their title, as above stated, comes from Weeks, who entered under the j udgment of foreclosure and ■ sheriff's deed dated Decomber 11, 1869, and recorded January 14, 1870. Whether the proceedings under the foreclosure suit were invalid or not, Weeks entered a claim that they were valid, and that the judgment was binding upon Stewart, the common source of title, and he or his grantees' have occupied the premises under that claim for more than twenty years prior to the commencement of this action. See Code Civ. Proc. §§ 365, 369.

Upon the whole case, I do not think that the plaintiff has shown any grounds for equitable relief, and judgment will therefore be rendered in favor of the defendants, dismissing the complaint upon the merits, with costs, and with an allowance of $300 to the defendants.

Complaint dismissed, with costs.


author: Herrick, J.

text:
    Sarah G. Smith, App’lt, v. John B. Smith, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 10, 1895.)

    Divorce—Adultery—Proof.
    In an action for divorce, the finding of the referee that the charge of adultery is true cannot be sustained, where a defense is made, the acts charged denied and the denial supported by the testimony of witnesses as credible as those of the adverse party, even though, if no defense has been made, the evidence establishes circumstances which might be sufficient to support the charge of adultery.
    Appeal from judgment in favor of defendant.

      Charles F. Doyle, for app’lt; William H. McCall, for resp’t.
   Herrick, J.

I concur in the conclusion arrived at by the referee that the evidence in this case is not sufficient to warrant a finding that the defendant had been guilty of the acts of infidelity charged against him, but I cannot concur in his conclusion that the evidence warrants the finding that the plaintiff had been guilty of the acts charged against her by the defendant. Charges of this kind are only to be established by clear and convincing' evidence. They are so serious in their character, and the results so grave, that a court should hesitate before making a finding of guilty except when thoroughly satisfied of the truth of the charge. While I have great reluctance in refusing, to concur in a finding of fact upon conflicting evidence, made by a referee pf the ability of the one in this case, who has had the witnesses before him; still, after reading and re-reading the. testimony in this case, my mind refuses to reach the conclusion that the charge made against the plaintiff is sufficiently established. There is no direct evidence of the commission of the act alleged against her, but only evidence of circumstances which, if no defense had been offered, might be sufficient to warrant an inference of guilty con-duct; but not only is a defense made in this case by the plaintiff, and the acts charged against her denied, but-the evidence to establish the facts from which the unfavorable inferences are to be drawn is controverted by witnesses on behalf of the plaintiff, who seem to be at least entitled to credit equal to those sworn on behalf of the defendant. Without reviewing the testimony at length it is sufficient to say that I cannot concur in the view of this branch of the case taken by the referee, and that, therefore, I think the decision arrived at by him in refusing to allow a judgment and decree are allowed in favor of the defendant and against the plaintiff should be reversed, without costs or disbursements of this appeal to either party.

All concur.


author: Lewis, J.

text:
    Pascal P. Pratt, App’lt, v. New York Central and Hudson River Railroad Company et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Injunction—Abutting owners—Basements.
    A contemplated city improvement for lowering railroad grade crossings will not be enjoined- pending an action by an abutting owner for damages, unless he can establish that the market value of his premises will be decreased by the improvement, or that it will prevent his property from increasing in value.
    3. Same—When not issued.
    A court of equity is not bound to issue an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right.
    Appeal from an order, refusing to continue and vacate a temporary injunction.

      John G. Milburn, for app’lt; Frank O. Laughlin, for resp’t.
   Lewis, J.

A plan was inaugurated several years ago for the purpose of remedying what had come to be a serious evil in the city of Buffalo, caused by the steam railroads crossing the streets of the city at grade. After the expenditure of much time and labor, a general plan for a change of grade crossing was adopted. It involved a very large expenditure of money, amounting to four or five millions of dollars, part of which is to be paid by the railroads and the balance by the city. The New York Central & Hudson River Railroad Company has for many years had and maintained two tracks running along the surface of a street in Buffalo known.as the “Terrace.” A very large number of its passenger trains pass over these tracks daily. Plaintiff owns a valuable parcel of land abutting upon the southerly side of the Terrace, upon which are valuable business buildings. His lot is -several hundred feet westerly from Main street, which crosses the Terrace. Pearl street enters the Terrace nearly opposite the plaintiff’s premises. Terrace street has been one of the public streets of the city for many years, and is about 200 feet wide. The adopted plan contemplates depressing the tracks of the Central road through the Terrace, and to accomplish this a cut is to be made along the center of the street, which will be twenty-eight feet wide, and in front of the plaintiff’s premises twelve feet deep; and a stone wall is to be built upon either side of the cut, extending two feet above the surface of the street. The space between the cut and the plaintiff’s premises will vary from forty-four to seventy-five feet in width. Main street is to pass ■over the cut, and a bridge for pedestrains is to be built over it at the foot of Pearl street. Teams entering the Terrace from Pearl street will be compelled to go several hundred feet out of their way to reach plaintiff’s premises by the way of Main street. The city owns the fee of the street, but no proceedings have been taken to condemn the plaintiff’s interest as an abutting owner in the Terrace, or to determine the injury, if any, which would be occasioned to him by the proposed excavation. Proceedings had progressed so far that contracts had been entered into with the defendants McNaughton and Huntington, and they were about to commence excavating for the cut in the Terrace, and this action was brought by the plaaintiff to restrain the defendants from proceeding with the work. A temporary injunction was obtained, and, upon a motion being made to continue the injunction pending the trial, an order was made vacating the injunction, and from this order the plaintiff appealed.

It is evident that the plaintiff’s property will derive, in common with other property in the city, some advantages from the contemplated change in the grade crossings. Those seeking to reach his premises will be relieved from the danger incident,to crossing the railroad tracks now upon the surface of the street. The real foundation of his complaint is that access to certain other streets will be by a circuitous instead of a direct approach. The primary purpose of this great improvement is not for the benefit of the railroad company or its patrons, or the traveling public, but is an exercise of the police power of the state for the protection of the lives and limbs of its inhabitants. The moving party in this undertaking is not the railroad company, but the. people of the state. The purpose is not to observe the railroad use or convenience. In this respect the circumstances of the case are unlike the numerous cases that have arisen and been determined in this state in respect to the liability of railroad companies to damages and injunctions by reason of the construction of railroad embankments or elevated railroads in streets. From the nature and extent of this improvement, and in respect to its alleged injurious effects upon abutting property, there is a substantial difference in the facts and circumstances of this case and those that existed in the cases of Reining v. N.Y., L.& W. Railway Co., 128 N.Y. 157; 40 St. Rep. 392, and Egerer v. N.Y. C. & H. R. Railroad Co., 130 N. Y. 108; 41 St. Rep. 488. In the former case the portion of the street in front of the plaintiff’s premises was practically and substantially closed for ordinary street uses by reason of the railroad embankment. So in the latter case the “ obstruction (embankment) practically destroyed the only access to plaintiff’s premises with a team and wagon.” The proposed cut will be an exclusive appropriation and occupation of twenty-eight feet in width of the surface of the street, and the abutting owners will be excluded from the part of the street so occupied; but there will remain open and unobstructed a sufficient portion of the street for traffic. There will be left substantially sufficient surface of the street for unobstructed ordinary travel, arid it may be a question whether this will amount to a taking of plaintiff’s easement of access to his, premises, or will merely constitute consequential damage which the abutting owner must bear without compensation as in case of surface roads; in other words, whether' the consequential damages flowing from such a lawful corporate use of the street have been transformed by the decision of the court from consequential injuries in invasions of property rights within the constitutional prohibition. American Bank Note Co. v. New York El. R. Co., 129 N. Y. 271 ; 41 St. Rep. 531; Sperb v. Met. E. Railway Co., 137 N. Y. 155, 159; 50 St. Rep. 204. But if it be assumed that the city cannot, for the purpose of altering the grade of the streets, appropriate a part of a street to the exclusive use of a railroad company so far as to prevent abutting owners from the use of any part of the street in the accustomed way without making compensation for the injury sustained, it'does not follow that the plaintiff is entitled to injunction pendente lite, nor that he will eventually show himself entitled to a final injunction, or even to substantial damages. The improvement -may result in the invasion of a technical right, and cause a technical wrong, and yet substantial damage may not be awarded, and the plaintiff may not be entitled .to injunctive relief. Unless the plaintiff can establish that the market value of his premises will be decreased by the improvement, or that it will prevent his property from increasing in value, he may not be entitled to anything more than nominal damages. In determining that question, the benefits and advantages resulting from the construction may be weighéd and considered. The removal of the danger paused by the railroad tracks at grade, and the substitution of an entirely safe, though circuitous, route or approach, may be considered. The doctrine on this subject is well stated in Bohm v. Met. E. Railway Co., 129 N. Y. 576, 587; 42 St. Rep. 247, from which we quote"in substance as follows: An abutting owner has certain rights and privileges in the city streets, termed ‘‘ easements,” which are appurtenant to his .land, and are a species of property. The beneficial enjoyment of these easements may be interfered with by the erection of an elevated railroad or a railroad embankment, etc., in the streets. This interference is a taking pro tanto, and entitles the owner to compensation, and, in addition, the damage done his adjoining land. As, however, these easements are of no value in and of themselves separate from the land, the real and only damage, if any, suffered by the owner in any particular case, is a consequential one,—i. e. the effect produced upon his abutting land. The question is simply as to the actual. result upon the land remaining Has its actual market value been decreased by the taking,,or has it prevented an enhancement in value greater than has actually occurred; and, if so, to what extent? The damage defendant may be required to pay is the difference between the actual fnarket value of plaintiff’s land and what it would have been worth if the, railroad had not taken the other property,—i. e. the easements. When, therefore, it appears that there has been neither a decrease in value nor any prevention of' an increase caused by the railroad, plaintiff is entitled only to nominal damages. The benefits from the construction may be taken into account, and weighed, and an injunction will not be issued without proof of substantial damages, notwithstanding a.technical or legal injury may have been caused to the abutting owners’ easement in a street. Newman v. Mel E. Railway Co., 118 N. Y. 618; 30 St. Rep. 36; Becker v. Met. E. Railway Co., 131 N. Y. 509; 43 St. Rep. 726; Purdy v. Man. Railway Co., 36 St. Rep. 43. In Gray v. Man. Railway Co., 128 N. Y. 509; 40 St. Rep. 478, the court, in speaking of a final injunction, observed that, unless the court below found the damage to be substantial, it could, in the exercise of his discretion, have withheld the injunction, and left the plaintiff to his remedy at" law; that an equity court is not bound to issue an injunction where it will produce great public or private mischief, merely for the purpose of protecting a technical or unsubstantial right. The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reversed, unless there has been an abuse of that discretion. City of Gloversville v. Johnstown, G. & K. H. R. Co., 49 St. Rep. 315; Hessler v. Shafer, 82 Hun, 199; 63 St. Rep. 756; Grill v. Wiswall, 82 Hun, 281; 64 St. Rep. 70. Again, the plaintiff may, by claiming it in his complaint, be awarded damages to the same extent, and for the same elements, as the compensation given in a special proceeding for the condemnation of land under the law of eminent domain.- If the damages awarded are not paid, an injunction may be granted restraining the work until the damages are paid. Hughes v. Met. E. Railway Co., 130 N. Y. 15; 40 St. Rep. 587; Pappenheim v. Met. E. Railway Co., 128 N. Y. 444 ; 40 St. Rep. 445. Upon the payment of damages thus ascertained, the plaintiff may be required to give a deed, or to convey the right to the defendant, and an injunction will be refused"if the defendant be willing to pay the damages upon receipt of a conveyance. This being the well-settled rule of law, there does not seem to be any propriety in arresting by injunction the progress of this great work of remedying the grade-crossing evil upon the facts presented. We have examined the authorities referred to in the appellant’s brief, and do not find them in conflict with our views of this case.

The order appealed from should be affirmed, with $10 costs an.d disbursements of the appeal

All concur.


text:
    Magdalena Bremiller, Resp’t, v. Buffalo, Rochester and Pittsburgh Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Negligence—Contributory—Burden.
    In an action for personal injuries sustained at a railway crossing, the burden of the proof is upon the plaintiff to show himself free from negligence contributing to the injuries.

      2. Same.
    The evidence was held insufficient to establish that plaintiff, who was injuried at a railroad crossing, was free from negligence.
    Appeal from a judgment, entered on a verdict in favor of defendant, from an order denying a motion for a new trial, made on the minutes.

      Henry G. Danforth, for app’It; W. G. Laidlaw, for resp’t.
   Lewis, J.

The plaintiff, while attempting to cross the defendant’s tracks .at the station near Ricevill, Cattaraugus county, was struck and injured by one of the defendant’s locomotives, and she brought this action to recover the damage she .sustained. ' There was a verdict for $450. The defendant's road at the place of the accident runs north and south, and crosses a highway which runs in an easterly and westerly direction. Four hundred and fifty feet south of this crossing was a curve and cut in defendant’s road, which obscured trains. Up to that point trains were visible to a person standing upon the highway crossing. There was a switch track westerly of the main track, extending from the highway southwesterly, the easterly rail of which was eight feet distant from the westerly rail of the main track. The highway crossed the railroad tracks at such an angle that along the highway the distance between these rails was about fourteen feet. The station was on. the easterly side of the railroad tracks and southerly of the highway. The plaintiff resided in a house on the westerly side of the railroad lands, and south of the highway. It was sixty-five feet from the door of her house to the center of the switch track. The plaintiff left her house on the 27th of February, 1892,. to go to the station to take the train going north, due at the station at 9:50 A. M. The ground.was covered with snow about one foot in depth. Plaintiff passed out into the highway, and walked up a beaten track across the switch track towards the depot, and just as she reached the main track, and had stepped one of her feet over the northerly rail, she discovered the train approaching from the south. She stepped back, but was not able to get entirely out of the way of the train, and was struck by the end of the cross-beam of the engine and received the inj uries complained of. One or two box cars were standing upon the switch track south of the highway. The northerly end of one of the cars was very near the track in which plaintiff walked. One of plaintiff’s witnesses testified that a team driven past the car would have come within one foot of it. The morning was stormy. Some of the witnesses described it as a very severe storm, the wind blowing in every direction. It was snowing. This was a flag station. Trains stopped at it only when signaled so to do. The train in question had not been signaled to stop, and so passed the station without stopping, and at a speed of from twelve to twenty-five miles an hour. There was much conflict in the evidence as to whether the approach of the train was announced by the ringing of the bell.and sounding the whistle. We assume that the defendant’s negligence caused the plaintiff’s injurles. The plaintiff, we think, failed to show herself free from negligence contributory to her' injuries. It was shown by uncontradicted evidence that there was at the time an unobstructed view on the south along the railroad track after passing the freight cars mentioned, standing upon the switch track, for the distance of from 440 to 450 feet, and the plaintiff could have seen the train at any time after it left the curve and cut, had she looked in that direction, after she passed the cars upon the switch track, unless her vision was in some way obscured. Upon her direct examination the plaintiff failed to state that she looked in the direction the train was approaching after she passed the car. She said that she looked for the train as she left her house, and looked again when she saw the cars on the switch track ; but upon her cross-examination by the defendant’s counsel she did testify that she looked for the train after she passed the car, and did not see it until she had stepped one of her feet over the north rail of the main track. Neither the plaintiff nor any other witness testified that the snow was falling so fast as to prevent her from seeing the train. The engineer and fireman testified that they were able to see the platform of the station as they approached it for the distance of 270 feet. Herman Kessler, one of defendant’s section men, was on the main track at the crossing, shoveling snow, and saw the train when it arrived within200 or 300 feet of him. The plaintiff’s husband testified that he stood in the doorway of his dwelling when plaintiff left her house. He said:

“ I see her when she went out of the door; and she went up and went across some cars ; and some cars stood there; and went across them, and went on the railroad. I saw her when she got throwed off there, and she was right under the cars.”

Again, he said:

“ I looked at her all the time. Did not take my eye off her till she got struck. I saw her struck.”

The plaintiff testified that as she left the house she saw Kessler shoveling snow by the cars; so that she was able for the distance of sixty-five feet to distinguish Mr. Kessler,- and see the shovel in his hands.

In the light of this evidence it cannot with any propriety be claimed that the falling snow prevented the plaintiff from seeing the train. Kessler was standing at the end of the^cars as plaintiff passed, but she did not see him. In trying to account for her not seeing him as she passed she said:

“ I did not look at him when I passed by the éars. I looked just where I want to go. When I came out of my house, he was there by them cars, around with his shovel. I cannot tell you if he was in the public road. He was doing something with his shovel by them cars that stood there. I saw him when I went out of the house. I did not look more. I did not look what he was doing there; not at all. I must have passed him when I went down to the railroad, because he works there by them cars; but I did not look at him, as I was bundled up, you know.”

Again, she said:

“My head was all bundled up.”

The plaintiff was entirely familiar with the running of the trains and with all the surroundings. She had lived for years near the station. She knew that the train was due, and was liable to arrive at any moment, for she was on her way to the depot to take it. She was, under the circumstances, called upon to be exceedingly vigilant in the use of her eyes, as she knew the wind was blowing, and that it might prevent her hearing the train. She walked from twelve to fourteen feet after passing, the cars upon the switch before she reached the main track, and, had she looked in the direction of the approaching train during that time, she would have seen it, unless the manner in which her head was dressed prevented it. Plaintiff was the only witness who testified that she looked in the direction of the train after she passed the cars. Her husband, who saw and carefully watched her from the time she left the house until she was struck by the engine, did not testify that he saw her look for the train. The plaintiff gave her testimony two years and more after the accident, and very likely believed she looked for the train after she passed the cars. The burden was upon plaintiff to show herself free from negligence contributing to her injuries. This we think she failed to do by a preponderance of evidence.

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

Bradley and Davy, JJ., concur; Ward, J., dissents.


author: Lewis, J".

text:
    Samuel C. Dey, App’lt, v. Minnie Prentiss, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Deed—Covenants.
    A covenant in a deed that the granteenshall keep in-repair the division fence between the land conveyed and the adjoining land of the grantor, runs with the laud.
    2. Line vences—Cost of construction.
    An owner of a lot, burdened with a servitude of constructing the entire line fence, cannot recover from the adjoining owner the cost of a portion of such fence, without showing that his land has been released from the servitude.
    3. Same—Estoppel.
    Where the owner of a lot is bound to maintain the entire line fence, the adjoining owner is not estopped from asserting such liability by the decision of the fence viewers, apportioning the part of the fence to be built by each owner, though he consented to their appointment.
    4. Appeal—First instance.
    The objection that a defense was not available under the pleadings, cannot be raised for the first time on appeal.
    Appeal from a judgment, entered on a verdict in favor of defendant, rendered by direction of the court, and from an order denying a motion for a new trial, made on the minutes.

      G. W. Harding, for app’lt; H. H. Belya, for resp’t.
   Lewis, J".

This action was brought to recover pay for building the defendant’s portion of a division fence between the lands of the parties, situate in the town of Hume, Allegany county. It was originally tried in a justice court, where the plaintiff had a verdict. The defendant appealed, arid the case was tried in the county court, where a verdict was directed for the defendant, of no cause of action.

It is alleged in the plaintiff’s complaint that the parties owned adjoining land; that they agreed, upon the portion of the line fence between their lands which each should build; that the defendant neglected and refused to build her portion of the fence for the period of more than one month after being requested so to do by the plaintiff; that the plaintiff thereafter built the same, at an expense of $12.83, and that, by virtue of the statutes relating to division fences, the defendant became liable to pay him said sum of money. Among other defenses interposed by the defendant, was a general denial.

It appeared upon the trial, that the lands of the parties formerly belonged to one Daniel Leaver. Leaver obtained his title by a deed from one Austin Partridge in the year 1855, and entered into possession thereof. Out of the land so conveyed to him by Partridge, Leaver deeded the plaintiff’s premises, of about four acres, to one Joseph Luckey, by deed dated March 1, 1863. The deed to Luckey contained the following covenant: “ And the said Luckey is to build, and keep in repair, all line fences between said lot and lots adjoining, owned now by said Daniel Leaver.” Luckey entered into possession and occupied the land so conveyed to him many years, and until he died. Defendant’s lot was a part of the farm not conveyed to Luckey by Leaver, and it adjoined the piece of land conveyed to Luckey. Luckey built and maintained, up to the time of his death, the line fence between his lot and the land now owned by the defendant. A Mr. Weaver occupied plaintiff’s lot for ten or twelve years after the death of Luckey under a deed from one Charles Flenagin. Weaver built and maintained the line fences in question while he was in possession. From whom Flenagin got the title does not appear. Weaver’s title deed was shown to be in the possession of the plaintiff at the time of the trial, but it was not put in evidence. Although a complete chain of the title from Leaver to the plaintiff was not shown upon the trial, the presumption is that his title came through Leaver, as did also that of the defendant’s.

Under the evidence, the burden, we think, was upon the plaintiff to show that his lot had in some way been released from the burden imposed upon it by the Leaver deed. This he failed to do. We agree with the county court that the covenant in the Leaver deed requiring the grantee, Luckey, to build and keep in repair the line fence in question, runs with the land. It was a covenant inserted in the deed for 'the benefit of the grantor, as owner of the adjoining land not conveyed, and which is now owned by the defendant. It released the defendant’s lot from the burden of thereafter building or maintaining a portion of the line fence between these lots. The distinction between covenants running with the land, and collateral covenants, which do not run with the land, is very clearly pointed out in the cases of Allen v. Culver, 13 Denio, 284, 297; Aikin v. Railroad Co., 26 Barb. 289, and Countryman v. Deck, 13 Abb. N. C. 110.

The appellant’s counsel contends that the defendant- was not entitled to avail herself of this defense, for the reason that, she had failed to plead it. The deed from Leaver, containing the covenant mentioned, was put in evidence by the defendant without the objection being made that the defense was not pleaded. It is too late to raise the question upon appeal. Had it been raised at the trial, the answer might have been amended, if deemed necessary. Whether, under the general denial, the defendant would not have been entitled to the evidence, we are not called upon to decide.

At the suggestion of the plaintiff, and by consent of the defendant, fence viewers were called upon to apportion the line fence between the lands in question. They designated the' part each should build, requiring the defendant to build that portion of the line fence for the building of which this action was brought. This fact is relied upon by the plaintiff as estopping the defendant from claiming the exemption mentioned. She case of Adams v. Van Alstyne, 25 N. Y. 236, would seem to have settled that question against the plaintiff’s contention.

The judgment and order appealed from should be affirmed.

All concur.


author: Putnam, J.

text:
    William T. Hart et al., App’lts, v. Ogdensburg and Lake Champlain Railroad Company et al., Resp’ts. (Two Cases.)

      (Supreme Court, General Term, Third Department,

      Filed September 27, 1895.)

    1. Corporations—Contracts—Directors.
    A contract, made by the directors of a corporation with another corporation, of which they are also- directors, is voidable by the corporation.
    2. Same.
    A lease entered into between two corporations, voidable because of their having common directors, cannot be disaffirmed by a minority of the stockholders.
    3. Same.
    The mere fact that the same persons were directors of the corporation which made a lease, and of that which took it, is not, of itself, sufficient to avoid the contract at the instance of one or more stockholders, against the will of the corporation.
    4; Same—Laches.
    The bondholders or stockholders cannot, after the lapse of six years, sue to disaffirm such lease.
    5. Same—Minority op stockholders.
    To justify the interference of the court with the management of a corporation, on the application of á minority of the stockholders, it must be shown that the action of the governing body complained of has been so clearly against the interests of the minority of the stockholders as to amount to a wanton and fraudulent destruction of the rights of such minority.
    6. Pleadings—Complaint—Corporations.
    The complaint by a minority of the stockholders to disaffirm the act of the directors was held insufficient and, therefore, demurrable.

      * Appeal from an interlocutory judgment in the first action, sustaining a demurrer to the complaint, and from a final judgment in the second action, sustaining a demurrer to, the complaint.

      Marcus T. Hun, for app’lts; Louis Hasbrouck., for resp’ts.
   Putnam, J.

The plaintiffs in the first above entitled action appealed from an interlocutory judgment sustaining the separate demurrer of defendants to the complaint, and in the second action to the final judgment in. favor of defendants on a like demurrer. As the complaints in each action are substantially alike, the cases may be considered together.

I think the judgments, as far as they sustain the demurrer to the first cause of action in the complaints, should be affirmed. The complaints allege the right of the Central Vermont Railroad Company, by its charter, to contract for the purchase of any railroad, or the stock, bonds, or property thereof. It therefore had the same right as an individual or individuals to buy a majority of the stock of the Ogdensburg & Lake Champlain Railroad Company, and obtain control thereof. I am unable to perceive any legal objection to one or more persons purchasing the majority of the stock of a railroad company, with the intent to obtain control thereof. Nor did the Central Vermont Railroad Company, in obtaining a majority of the stock of the Ogdensburg & Lake Champlain Railroad Company, with the intent to obtain a controlling interest in said road, do an unlawful or objectionable act. But, if such purchase was made with an intent to mismanage the affairs of such road, and to conduct its business in such a way as to defraud the minority of the stockholders, or with a view of conducting the affairs of such road in the interest of the Central Vermont Railroad, and if such intent was in fact carried out, the minority of the stockholders of the Ogdensburg & Lake Champlain Railroad Company have a right to complain, and may obtain relief by an action in a court of equity. The question then arises, whether the complaints alleged such a state of facts as authorizes the court, on the application of income bondholders, or a minority of the stockholders, of the Ogdensburg & Lake Champlain Railroad Company, to grant relief in these actions.

The objections made by the plaintiffs to the lease made by the Ogdensburg & Lake Champlain Railroad Company to the Central Vermont Railroad Company, on the ground that it violates the rights of the income bondholders, holding bonds of the first-named company', to receive in payment of interest on their bonds the net earnings of the said railroad company after defraying the expenses of conducting its business, as provided in said bonds'and the mortgage by- which the same are secured, by authorizing the lessee to use said earnings for the “development and improvement ” of said road, were passed upon by the court of appeals in Day v. O. & L. C. Railroad Co., 107 N. Y. 129; 11 St. Rep. 335, and hence need not be considered by us. - The court of appeals, in the case cited, where the same question was raised, held adversely to the claim of plaintiff. See, also, Thomas v. N. Y. & G. L. Railroad Co., 139 N. Y. 163; 54 St. Rep. 498.

The objection is also made to the lease that, when exebuted, tlxe Central Vermont Railroad Company, through its agents, controlled the Ogensburg & Lake Champlain Railroad Company, and that directors, officers, and agents of the former were directors of the latter. It is held that a contract made by a director of a corporation with it is voidable by the corporation, and it has also been decided that the same rule applies to a contract by the directors of a corporation with another corporation of which they are also directors. This principle is considered in the very able and exhaustive opinion of Van Brunt, J., in Metropolitan El. R. Co. v. Manhattan El. R. Co., 11 Daly, 373, 502, 503. The case cited, however, recognized the doctrine laid down in Wallace v. Railroad Co., 12 Hun, 460, that a contract entered into between two corporations, voidable because of their having common directors, could not be disaffirmed by a minority of the stockholders ; that “the rule that persons acting in a fiduciary capacity shall not, directly dr indirectly, make any profit by means of such acts, or be interested in contracts made by their principals, undoubtedly applies to directors of corporations. It is a valuable principle, and ought not to be impaired by any subtle or refined distinctions. Still, the mere fact that the same persons were directors of the corporation which made the lease, and of that which took it, is not, of itself, sufficient to avoid the contract at the instance of one or more stockholders, against the will of the corporation. That fact alone might entitle either corporation to avoid the lease, but I apprehend it does not give that right to a stockholder.” Van Brunt, J., remarks, in Metropolitan El. R. Co. v. Manhattan El. R. Co., supra, referring to the doctrine laid down in Wallace v. Railroad Co.:

“The principle is here recognized that the majority of the stockholders may ratify a lease made by the directors, and that a minority cannot disaffirm; that therefore it must be the majority of the shareholders, acting through the corporation, who repudiates, and no shareholder has the power to exercise that right against the will of the majority.”

I concur in the views thus stated. See, also, Gamble v. Queens Co. Water Co., 123 N. Y. 92-98 ; 33 St. Rep. 88. I therefore conclude that the objection, alleged in the complaints, to the lease on the ground that some of the directors of the Ogdensburg & Lake Champlain Railroad Company were also directors, agents, officers, or attorneys of the Central Vermont Railroad Company, was properly overruled by the court below.

I am also of the opinion that the conclusion reached below in x-egard to the lease was correct, because of the great delay in attempting to repudiate it. The lease was entered into between the two corporations on June 1, 1886. These actions were commenced on October 30, 1892, over six years after the making of the contract. Owing to the large lapse of time since the execution of the lease, the Ogdensburg & Lake Champlain Railroad Company itself could not have disaffirmed it on the ground that it was entered into by two corporations with common directors. ■ See U. S. Rolling Stock Co. v. Atlantic & G. W. R. Co., 34 Ohio St. 450; Oil Co. v. Marbury, 91 U. S. 587, 592 ; Kent v. Mining Co., 78 N. Y. 159. It will rot be claimed that plaintiffs, as individual bondholders or stockholders, can sustain an action to set aside the lease on the ground stated, which the corporation itself could not maintain.

, The complaints also allege, in the first count, that the Central Vermont Railroad Company, since the execution of the said lease, in apportioning the earnings of the two corporations for through business, has taken more than its proper share of the receipts, and ask for an accounting. This is, in fact, a separate cause of action from that previously set out in the pleading seeking an annulment of the lease, although not separately stated. The first cause of action contained in the first count seeks to vacate the lease. This cause of action is for an alleged wrong done by the Central Vermont Railroad Company to the Ogdensburg & Lake Champlain Railroad Company after the execution of and under the lease. I concur in the views of the court below that the allegations in regard to the alleged improper division of the earnings of the two corporations by the Central Vermont Railroad Company contain no cause of action. Sufficient facts are not stated to justify interference by a court of equity in the affairs of the two corporations. It does not appear to what extent the Central Vermont Railroad has taken earnings that should have gone to the other defendant. Et is well settled that, ordinarily, the court will not interfere with the control of a corporation by its directors and a majority of its stockholders. It will not interfere, although the directors may have acted unwisely, and not for the best interests of the corporation they represent. To justify the interference of the court with the management of a corporation, on the application of a minority of the stockholders, it must be shown that the action of the governing body complained of has been so clearly against the interests of the minority of the stockholders as to amount to a wanton and fraudulent destruction, of the right of such minority. It must appear that the action of the majority of the stockholders and directors is a clear, substantial, and flagrant violation of the rights of the minority. Gamble v. Water Co., supra. The complaints do not show such a state of facts; No allegations are made to the effect that, in the division of the receipts for through business between the two companies, the Ogdensburgh & Lake Champlain Railroad Company was wronged to an extent that will justify interference by a court of equity. The complaints do not allege such a state of facts as shows a fraud on the minority, and are not sufficient under the doctrine laid down in Gamble v. Water Co., supra, and kindred cases.

The complaints allege that the Ogdensburg & Lake Champlain Railroad Company owned three boats, under a conditional contract, on which it had made large payments; that the Central Vermont Railroad Company, after it bad obtained control of the former road, wrongfully allowed a payment on said contract to be omitted, whereby the interest of said Ogdensburg & Lake Champlain Railroad Company therein became forfeited, and that the Central Vermont Railroad Company thereupon organized a corporation known as the “ Ogdensburg Transit Company,” the stock of which it owned. Said transit company purchased the said boats, being allowed by the vendor the amount previously paid by the Ogdensburg & Lake Champlain Railroad Company on said contract. This alleged cause of action, although stated in the first count of the complaint and not separately numbered, is, in fact, also separate and distinct from that alleging the invalidity of the lease. The wrongful act of the Central Vermont Rail-' road Company in procuring or suffering the transfer of the title to the three boats to the Ogdensburg Transit Company has no relation to its alleged illegal act in obtaining the lease. The act of which plaintiff complains is the omission of the directors of the Ogdensburg & Lake Champlain Railroad Company controlled by the Central Vermont Railroad Company, to make payment on the conditional contract. The demurrers do not admit the statements in the complaints that the act of omitting to make such payment was wrongful. Thomas v. Railway Co., supras. That word being omitted from the complaints, all that remains in the pleading is a mere statement that the directors, controlled by the Central Vermont Railroad Company omitted to make a payment on the conditional contract. It seems clear, therefore, that the pleading does not state a cause of action.- No sufficient facts are alleged The complaints contain neither a copy nor the substance of the contract. It is not allaged that the directors had money under their control to make the payment. We are unable to say, from the pleading, whether the conditional contract was one that should have been carried out. The demurrer does not admit ^acts alleged fn the pleading sufficient to constitute a cause of action. I conclude, therefore, that the court below reached the proper conclusion in sustaining the demurrer to the first count or cause of action contained in the complaints.

The second and subsequent causes of action in the complaints, to which the demurrers were interposed, relate to the proposed consolidation of the two defendants. The agreement for such consolidation between the directors of said corporations was made • about six years after the execution of the lease. The position taken by plaintiffs, that the agreement for consolidation, made by the directors of the two corporations when the actions were commenced, was of no force, because the Central Vermont Railroad Company had elected as directors of the Ogdensburg & Lake Champlain Railroad Company some of its own directors, officers, and agents, and because said corporations, with common directors, could not lawfully contract with each other, has already been considered. The contract was voidable, but not void. It could be ratified by a majority of the stockholders. If it was so ratified, and otherwise valid and legal, it could not be set aside at the suit of the minority of the stockholders.1

Several objections made by plaintiffs to the proposed consolidation of the two defendants, alleged in the second and subsequent causes of action in the complaints, have been considered and passed upon by this court in Hart v. O. & L. C. Railroad Co., 60 Hun, 378; 52 St. Rep. 799. A discussion of such objections, therefore, is not now called for. In the case cited the plaintiffs claimed, as alleged in the complaints in these actions, that the proposed consolidation, if carried into effect, would impair the obligation of the contract between the income bondholders and the Ogdensburgh k Lake Champlain' Eailroad Company:

“ First, by depriving them, as bondholders, of the right to vote for those persons whose judgment as to the application of earnings is practically decisive of their rights to interest; second, by depriving them of directors who would have any motive to promote the interests of the plaintiffs, and who, from their position, would be familiar with the facts, and in whose selection, they, as bondholders, have a right to participate; third, that the net earnings of the property of the company belong to the bondholders, and that by the article of consolidation no provision is made, for keeping separate accounts, and no accounting is provided for, for the same; fourth, that the bondholders are deprived of their share in the extension of the business of the company.”

The court, in the case cited, overruled the objections of plaintiffs to the proposed action of the two companies, and held that such intended consolidation might -be legally made.

The plaintiffs allege that the proposed agreement is in every way disadvantageous to and opposed to the interests of the Ogdensburg & Lake Champlain Eailroad Company; that the earnings of said road had greatly increased during the six years of the exis-' tence of said lease; that it is a connecting link between the states of Hew England and the West, and is of great" value by reason thereof; that the Central Vermont Eailroad Company has never paid a dividend, and its stock has never been dealt with in the market, and has no market value, yet the agreement of consolidation proposes that one share of stock of the new company to be formed shall be given in return for ten shares of the capital stock of the Ogdensburg k Lake Champlain Eailroad Company, while one share of said new stock shall be exchanged for one share of the stock of the Central Vermont Eailroad Company. The case in which an action by a majority of the stockholders of a corporation to restrain the proposed action of its directors and majority of the stockholders can be maintained is considered in the opinion of Peckham, J., in Gamble v. Water Co., supra. The learned judge remarks:

“ I think that, where the action of the majority is plainly a fraud upon, or, in other words, is really oppressive to, the minority shareholders, and the directors or trustees have acted with and formed part of the majority, an action may be sustained by one of the minority shareholders, suing in his own behalf and in that of all others coming in, etc., to enjoin the action contemplated, "and in which action the corporation should he made a party defendant. It is not, however, every question of mere administration or of policy, in which there is a difference of opinion among the shareholders, that enables the minority to claim that the action of the majority is oppressive, and which"justifies the minority incoming to a court of equity to obtain relief. Generally, the rule must be that in such cases the will of the majority shall govern. The court would not be justified in interfering, even in doubtful cases, where the action of the majority might be susceptible of different constructions. To warrant the interposition of the court in favor of the minority shareholders in a corporation or joint-stock association, as against the contemplated action of the majority, where such action is within the corporate powers, a case must be made out which plainly shows that such action is so far opposed to the true interest of the corporation itself as to lead to the clear inference that-no one thus acting could have been influenced by any honest desire to secure such interests, but that he must have acted with an intent to subserve some outside purpose, regardless of the consequences to the company, and in a manner inconsistent with its interests. Otherwise, the court might be called upon to balance probabilities of profitable results to arise from the carrying out of the one or the other of different plans proposed by or on behalf of different shareholders in a corporation, and to decree the adoption of that line of policy which seemed to it to promise the best results, or, at least, to enjoin the carrying out of the opposite policy.”

Under the doctrine thus laid dpwn, sufficient facts are not stated in the complaints to show that the proposed agreement is so much opposed to the interests of the Ogdensburg & Lake Champlain Eailroad Company as to sustain an action. The allegation that the agreement is in every way disadvantageous to' the last named corporation, and advantageous to the Central Vermont Eailroad Company, is a statement of a conclusion of law. The allegations that the receipts of the Ogdensburg & Lake Champlain Eailroad Company have increased and are increasing, that the road is of great value, that the Central Vermont Eailroad Company has never paid a dividend, and that its stock has no market value, do not enable us to determine the respective values of the stock of the two roads. The plaintiffs do not- allege the value of the stock of either road, or the comparative value thereof. If the pleadings had stated that the stock of 'the Ogdensburg & Lake Champlain Eailroad Company was equal in value to that of the Central Vermont Eailroad Company, or that two shares of the former were worth as much as one share of the latter, or alleged the respective values of the stock of each company, it would have stated facts on which the court could have formed a conclusion. As it is, the pleader leaves us to guess, from the allegation, that the Ogdensburg & Lake Champlain Eailroad Company, is a valuable road, and its business is increasing, and that the Central Vermont Eailroad Company has never paid. a dividend on its stock, and that such- stock has no market value, the respective values of the stock of said roads, and that the proposed agreement is disadvantageous to the former road. Although the plaintiffs allegó an increase- in the earnings ■of the Ogdensburg & Lake Champlain Eailroad Company during the existence of the lease, there is no averment stating the amount of such earnings, or the‘amount of such increase. I think, therefore, that the plaintiffs, as far as they have attempted to show that the proposed agreement of consolidatian is disadvantageous to the interests >of the stockholders and bondholders of the Ogdensburg & Lake Champlain Railroad Company, fail to set forth such á state of facts as authorizes the maintenance of these actions, within the doctrine laid down in Gamble v. Water Co., supra.

Other questions are raised in the points of counsel which I do not deem it necessary to consider.

An appeal is also taken by plaintiffs from an order of the court below awarding an extra allowance of $1,000 to defendants. The complaints allege, as one of the causes qf action, a wrongful act on the part of the Central Vermont Railroad Company in causing the directors of the Ogdensburg & .Lake Champlain Railroacl Company to omit making a payment due on the conditional contract theretofore made by the last-named company for the purchase of three boats, and that, in consequence of said wrongful act, the title of said company to said boats was divested; that the Central Vermont Railroad Company organized a corporation called the “Ogdensburg Transit Company,” of which it owned the stock, and procured a transfer of said boats to such company, and on such, transfer the amount previously paid by the Ogdensburg & Lake Champlain Railroad Company on said conditional contract was allowed as part, of the purchase price; that the said boats have earned, since 1887, $100,000 per year over all expenses. The complaints asked for judgment against the Central Vermont Railroad Company in favor of the Ogdensburg &■ Lake Champlain Railroad Company for the value of the interest of the latter in said boats, and also for such an amount as would represent the earnings of said boats since June 1, 1886. The earnings of the boats, as stated in the complaints and the affidavit of Mr. Hasbrouck, since 1887, were about $500,000, which sum plaintiffs in these actions sought to recover for the Ogdensburg & Lake Champlain Railroad Company. I think, therefore, there was, in the complaints, a claim to recover of defendants a sum of money on which an extra allowance of $1,000 could be properly made by the court below, under the provisions of section 3253, Code of Civil Procedure.

The judgments and order should be affirmed, with costs.

All concur.


text:
    Berwind-White Coal Mining Company, App’lt, v. George S. Ewart, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Corporations—Stockholder—Liability.
    An action to enforce the personal liability of a stockholder for debts of the corporation will not lie, until an execution has been levied upon the property of the corporation, if any, and the property sold under the execution, though the amount realized on such sale will* not satisfy the judgment.
    Appeal from a judgment dismissing the complaint.

      M A. Nash, for app’lt; J. B. Adams, for resp’t.
   Lewis, J.

The plaintiff is a judgment creditor of the Livingston Salt Company, a corporation organized under the business corporation law of June 1, 1875. This action was. brought by the plaintiff, as such judgment creditor, to recover of the defendant an amount equal to the stock held by him, to wit, $300, on the ground that the whole amount of the capital stock of said company had not been paid in, neither had the certificate of such payment been made and recorded, as required by law. The issue and return of an execution upon the plaintiff’s judgment against the salt company was á condition precedent to the plaintiff’s right to maintain this action. It was shown upon the trial that all the prerequisites to the right to maintain the action had been complied with, by the plaintiff, with the exception of a proper return of an execution. An execution had been duly issued to the proper sheriff, and he had, by virtue thereof, levied upon a quantity of salt, which was in fact, at the time of the levy, the property of the salt company, and was liable for sale under the execution. The evidence tended to show that the salt company had, prior to the said levy, executed a transfer of the salt to one Shattuck. This transfer was shown to have “been fraudulently made, by collusion between the directors of the salt company and Shattuck. The execution had been returned unsatisfied in part after the levy was made, and before the salt had been offered for sale under said execution. Before the defendant could be made liable in this action, the plaintiff was required to attempt in good faith, to make its debts out of the assets of the company. This, the evidence tended 'to show, it failed to do.

The conclusion of the trial court that the pretended sale of the salt to Shattuck took place on the 23d day of' February, 1893,— the same day, and presumably after, the company’s commercial paper had gone to protest—is fairly sustained by the evidence. The insolvency of the company was at the time unquestionably imment, to the knowledge of its trustees, and the transfer of the salt to Shattuck was made by them in contemplation of the insolvency of the company.

It is suggested by the appellant’s counsel that, had the salt been sold by the sheriff under the execution, there would not have been a sufficient amount realized therefrom to pay the plaintiff’s execution in full. That may be true, but the plaintiff is attempting to enforce against the defendant a statutory liability. It is not a case for balancing probabilities. Without enlarging upon the facts which are so fully and clearly set out in the opinion of the trial judge, we are satisfied that his findings and conclusions were fully sustained by the evidence, and that the judgment should be affirmed.

All concur.