author: Follett, J.

text:
    The New York Security & Trust Co, Resp’t, v. Benjamin Blydenstein et al., Impl’d, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Injunction—Action to prevent multiplicity op suits.
    Certain warehouse receipts for hales of burlaps were pledged to plaintiff for a loan. Appellants and others claimed that the bales had been pledged or sold to them, but none of the defendant firms claimed the same bales, and it was agreed that the bales should be sold, and that plaintiff should hold the proceeds of the specific bales claimed by each subject to the same rights that the claimants would have in the bales. Held, that the claims of the different firms being distinct and several and relating to the sales of the specific bales claimed by them, there was no ground for an equitable action to prevent multiplicity of suits and determine their claims, nor for an injunction restraining appellants from suing in the federal court to recover the net avails of the bales claimed by them, the amount of which was not disputed.
    Appeal from so much of an order as denies a motion to vacate an injunction restraining the appellants from prosecuting an action in the United States circuit court against the plaintiff.
    December 1, 1891, the Terminal Warehouse Company issued to Lipman &> Co. five negotiable warehouse receipts, numbered 3450, 3451, 3452, 3461 and 3462, each being for 100 bales of burlaps. September 7, 1892, Lipman & Co. borrowed from the plaintiff $50,000, which they in. writing promised to pay four months after date, and as security for the performance of their promise pledged and delivered to the plaintiff these receipts. Between October 31, 1892, and November 4, 1892, Lipman & Co. paid $30,000 on the sum loaned, and received from the plaintiff three of these receipts. Between September 7, 1892, the date of the loan, and December 15, 1892, some of the bales covered by the receipts were withdrawn from the warehouse, and other bales of burlaps of equal value substituted, for which new' receipts were given, and turned over to the plaintiff. December 15, 1892, the plaintiff surrendered the receipt remaining in its hands to the Terminal Warehouse Company, and received from it, in lieu thereof, a new receipt, issued directly to the plaintiff for 200 bales of burlaps. Afterwards, and before this action was begun, eight firms and corporations, represented by the defendants, notified the plaintiff that 109 of the 200 bales had been pledged or sold to them.
    The appellants claim thirty-eight bales; the Manchester Trust Co., Ld., fourteen bales ; Le Vita & Co., three bales; Colesworth & Powell, nine bales; Brown Brothers & Co., one bale; the Merchants’ Banking Company, Ld., seven bales; Hong Kong & Shanghai Banking Corporation, twenty-two bales; Antony, Gibbs & Sons, fifteen bales. All of these bales bore distinctive marks, and none of the firms claim the same bales. After these claims were presented, agreements were entered into between the plaintiff and the firms of B. W. Blydenstein & Co., Le Vita & Co., the Merchants’ Banking Co., Limited, and the Manchester Trust Co., Limited, by which it was agreed that the bales claimed by each should be sold by the plaintiff, which should hold the net proceeds arising from the sales of the specific bales claimed by each subject to the same rights that the claimants would have in the bales. In pursuance of this agreement the plaintiff, January 28, 1893, sold said thirty-eight bales claimed by B. W. Blydenstein & Co., the net avails of which were $4,347.98.
    The net avails arising from the sale of the 200 bales were $21,793.51, at which date there was due the plaintiff on the loan $19,743.74, which, deducted from the net amount received from the sales, leaves $2,049.77 in the hands of the plaintiff belonging to Lipman & Co., their transferees or creditors. This balance has been attached by the sheriff of the city and county of New York in actions brought by creditors of Lipman & Co. February 21, 1893, Blydenstein & Co. brought an action against the plaintiff herein in the circuit court of the United States for the southern district of New York, for the recovery of $4,347.98, the net avails arising from the sale of the thirty-eight bales, alleging that they were the owners of those bales, which the trust company had converted to its own use. It is set out in the complaint in the circuit court that the bales had been sold by an agreement with the trust company, and only the net proceeds of the sale is claimed, with interest from the date of the sale.
    The plaintiff brings this action for the purpose of restraining the prosecution of the suit in the United States circuit court, and of all other actions which may be brought by the firms and ■corporations claiming some of the goods. No other actions have been begun, but it is alleged that: “The plaintiff verily
    believes that other actions of similar nature will be begun against it, threats having been made to it so to do. It is impossible or extremely difficult for plaintiff to set up in each of these separate actions the facts constituting its defense against the right in •each of them of their respective plaintiffs to recover the full balance now in the possession of the plaintiff herein. The plaintiff herein, having paid out in one of these actions the full balance in its .hands, will be without remedy in another similar one. Unless the title to all these goods or their proceeds be settled in one action, plaintiff’s rights will be irreparably and inequitably destroyed.”
    "With the summons and complaint in this action a preliminary injunction was granted, restraining the defendants, their agents, attorneys and servants from bringing, maintaining or continuing any action for the recovery of the sums claimed by them, and especially enjoining the appellants, their agents, attorneys and servants from prosecuting the action they had begun in the United States circuit court.
    Upon the order to show cause at a special term of this court, contained in the preliminary injunction, why it should not be continued pending the action, it was ordered that the injunction be continued, and that the firm of B. W. Blydenstein & Co. be restrained from continuing the prosecution of their action in the United States circuit court. From so much of this order as restrains the firm of B. "W". Blydenstein & Co. from prosecuting their action in the United States circuit court the defendants, constituting said firm, have appealed.

      Antonio Knauth, for app’lts; William B. Hornblower, for resp’t.
   Follett, J.

of the defendants have appeared in this action except the appellants, who are citizens and residents of foreign countries, and they have not been served with process nor have they appeared in the action except specially for the purposes of this appeal. Briesen & Knauth, as attorneys for B. W. Blydenstein & Co., brought the action in the United States circuit court, and they bring this appeal. This injunction seems to have been granted and continued on the theory that each of the eight firms and corporations claimed an interest in the fund arising from the sale of the 200 bales; but the exact reverse appears by the complaint in this action, wherein it is alleged that every one of the firms and corporations claim a definite number of the. bales, or the avails thereof, which bales were identified by distinctive marks. By the suit being prosecuted in the United States circuit court, B. W. Blydenstein &¡Co. do not seek to recover an interest in the entire sum realized upon the sale of the 200 bales, but simply demand a judgment for the net avails realized from the sale of thirty-eight specific bales, of which they claim to be the owners, and to which the other defendants make no claim. By the contract entered into between the plaintiff and B. W. Blydenstein & Go., it was agreed that the former should sell the thirty-eight bales, and that the claim of the latter should be limited to the net avails, arising from their sale. In pursuance of this agreement the plaintiff sold the bales and realized a sum, the amount of which is not in dispute. The fact that the plaintiff on the same day chose to sell seventy-one other bales, which were claimed to be owned by other firms and corporations (no firm or corporation claiming the same bales), and ninety-one bales to which no one claims any interest adverse to plaintiff, and to credit the avails arising from the sale of all the bales to one account, does not give any one of the firms an interest in the fund. The four firms and corporations who entered into agreements with the plaintiff for the sale of the bales claimed by each, and limiting their claims to the net amount realized upon the sale, have no •claim in the entire fund, but simply to recover of the plaintiff a sum equal to the net amount realized upon the sale of the bales which they claim. The four other firms who did not contract that the bales claimed by each of them might be sold have no claim whatever to the funds realized upon the sale of the 200 bales. Their claim, if any, is for the recovery of the value, or of their interest in the value, of such of the bales as each asserts title to oran interest in. The claims of these eight firms and corporations, and the defenses thereto, are as distinct and several as though they had been made under eight independent contracts, each contract relating to a single ship, no two claiming an interest in the same ship. In such a case, the fact that a person should claim all of them under one contract with a third person, and should sell the vessels and deposit the avails in a distinct account, would afford no reason for restraining actions brought by the several firms and corporations for the alleged conversions. Nothing that the converter could do by mingling the avails arising from the sale of the ships would affect the right of each claimant to prosecute his individual action. Had there been a joint agreement between the eight firms and corporations, or between any of them and the plaintiff, for the sale of the bales and for holding the avails as a single fund, or had there been cross interests in or claims to the bales, the case would have been quite different.

The case at bar is much stronger for the appellants than the •one supposed, for the plaintiff expressly contracted with them that the thirty-eight bales should be sold, and their recovery, in case they established a prior title to them, should be measured by the amount of the net avails of the sale, which is precisely what they seek to recover in the United States circuit court. We see no ground in such a state of facts for the equitable relief sought, or for the injunctive relief granted. The case at bar does not fall within the principle of the National Park Bank v. Goddard, 131 N. Y., 494 ; 48 St. Rep., 777, which arose over a confusion of goods and of interests caused by others than the plaintiff, and for which it was in no wise responsibla Nor does it arise out of a joint contract, nor out of an act or acts participated in by by the defendants. Whatever of confusion there may be arises from the plaintiff’s acts, and affords no ground for restraining the appellants from prosecuting an independent cause of action, if they have one, in which no one but the plaintiff and defendants claim an interest.

The view which we have taken of the right to maintain this action renders unnecessary a discussion of the question whether the court has jurisdiction to restrain the prosecution of an action in the United States circuit court by persons who are neither citizens nor residents of this state, and who have not appeared nor been served with process in the action in which the injunctive relief is soueht.

The part of the order appealed from should be reversed and the injunction restraining the appellants from the prosecution of their action vacated, with ten dollars costs and printing disbursements, and the motion to continue the temporary injunction against the appellants denied, with ten dollars costs.

Yan Brunt, P. J., concurs.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    Simon Klaber et al., Resp’ts, v. William Taylor et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Assignment—Monets held by defendants simply as security fob such
    CLAIMS AS SHOULD BE ESTABLISHED AGAINST THEM.
    Plaintiffs furnished certain material for a building upon which defend- • ants’ testator held a mortgage. By a subsequent agreement between defendants and the mortgagor and his wife, in relation to the mortgage, defendants agreed to pay to the wife, who claimed to have advanced moneys from her personal estate toward the erection of the building, a certain sum and hold the balance of the amount claimed by her as security against claims made in connection with said building which were to be defended, including plaintiffs’, to reimburse themselves in case of defeat, and in case of success to pay the proportionate part released to the mortgagor’s wife. Plaintiffs proceeded against the mortgagor, but subsequently his wife, without plaintiffs’ knowledge, sent a paper to defendants, authorizing and directing them to compromise, settle and pay to plaintiffs in full settlement not more than a certain sum. This paper was not acted on further than to draw a check, which was not used. Held, that this did not constitute an equitable assignment of part of the sum retained by defendants.
    2. Same—Estoppel.
    An inaccurate statement, made by oversight in an account made to a stranger to the action, and which was not known to the parties in interest, creates no estoppel.
    Appeal from a judgment in favor of the plaintiffs, rendered upon a verdict directed at circuit.

      Hamilton Odell, for app’lts; Morris S. Wise, for resp’ts.
   Barrett, J.

The defendants are the executors of John Taylor, deceased. Mr. Taylor, in his lifetime, held mortgages to a large amount upon an apartment house named “ The Osborne,” which was built by one Thomas Osborne. The plaintiffs furnished certain marble work to be used in this building, for which there is still due them $1,000. Upon Taylor’s death an agreement was entered into between his executors, these defendants, and Mr. and Mrs. Osborne for a settlement of all questions with regard to Taylor’s mortgages. The material part of this agreement, as bearing upon the present action, is that between the defendants and Mrs. Osborne. It recites that Mrs. Osborne claims to have advanced to her husband, out of her separate estate, the sum of $30,000 “toward the erection of said Osborne apartment house.”

For considerations not necessary to be detailed, the defendants agree to pay Mrs. Osborne $5,000 upon the signing of the agreement, and to hold $25,000 for her benefit, subject to certain terms and conditions. These terms and conditions are substantially as follows: Claims having been made against Taylor’s estate, growing out of the building in question, which were to be defended, the executors were to hold this $25,000 as their security against such claims. In case of defeat, the 'executors were to pay themselves out of the sum so withheld, but in case of success they were to pay Mrs. Osborne the proportionate part of the sum thus released. The agreement then provides as follows :

This mode of procedure is to be continued by the executors until the whole amount of such claims shall have been paid, or are finally disposed of, or until the whole of said balance shall have been exhausted, either by payment of claims or payment to said Susannah Osborne ; when exhausted in either way, the executors are to be and are hereby released from any further liability or payment on account hereof.”

It appears that the plaintiffs’ claim already referred to was included in, the list specified in the agreement, and was, consequently, one of those as security for which the defendants were to hold the $25,000.

The plaintiffs never proceeded against the defendants upon this claim. They charged the marble work to Mr. Osborne upon their books, and subsequently brought an action against him for the amount so due them, in which they recovered judgment on the 5th of March, 1890. Nor is the present action brought to recover upon the claim referred to in the agreement, but to recover a specific part of the $25,000 held by the defendants as security for that claim.- The facts upon which the latter contention is based are briefly these: A little over a year after the

agreement was made Mrs. Osborne signed a paper, in which she authorized and directed the defendants, out of the moneys remaining in their hands under the agreement, “ to compromise, settle with and pay to Klaber & Son, in full settlement of their claim, not to exceed the sum of $939."

This paper was received by the defendants and retained by them. But they never acted upon it further than that the defendant Gilson, as executor, drew a check for the amount payable to the order of the defendant Armstrong, and sent it to Armstrong, who never used it. The defendants, in fact, never tried to “ compromise or settle ” with Klaber & Son, and the latter knew nothing of what Mrs. Osborne had done, and never heard of the order, check or transaction until long afterwards.

We can scarcely treat as- serious the contention that, upon these facts, there was an equitable assignment of part of the sum reserved by the defendants. The moneys were not held by the defendants for the payment of the plaintiffs’ claim, or for the payment of any claim, but as security for the payment by them of such claims as should be established against them under the agreement. Mrs. Osborne had no more right to require the defendants to compromise and settle the plaintiffs’ claim than she had to compel the plaintiffs to accept less than their due. The plaintiffs .had no possible claim against her, and, consequently, there was no basis for an appropriation to pay a debt of hers. But, even if she chose to appropriate her own money to the payment of her husband’s debts, she could only do so when she became entitled to the fund by virtue of its release from the claims-against the defendants as - specified in the agreement She could not secure such release by forcing the defendants to pay $939 upon a claim which, as against them, they believed to be wholly unjust. Mrs. Osborne, therefore, had no fund in the defendants’ hands which she could presently appropriate, and, consequently, the order effected no such appropriation. It simply amounted to an expression of her wish that the defendants should concede their liability to the extent suggested, and induce the plaintiffs to look at it in the same way. And, further, there was no delivery of the instrument to the proposed assignee, no agreement or understanding on the subject, and no knowledge even on the part of such assignee that the instrument had been executed.

A suggestion is made that the defendants may be liable upon the doctrine enunciated in Lawrence v. Fox, 20 N. Y., 268. This celebrated case has been invoked in. support of many vagaries, but none quite so far-fetched as thia Mrs. Osborne assumes to direct the defendants to settle a claim against themselves made by a third person (which claim they dispute) for an amount which she arbitrarily fixes, and to pay the sum, in case the third person is willing to accept it, out of moneys which they hold for their own security.

There is surely no possible analogy between this and a promise made by the defendants to Mrs. Osborne upon a valuable consideration for the benefit of the plaintiffs

There is one other fact which should be mentioned. It appears that, on an examination in supplementary proceedings, in another case, Mr. Armstrong submitted an account in which Mrs. Osborne was charged with the amount of the check for $939 as paid to Klab'er & Sons in settlement of the .claim. This charge was a plain mistake The fact was that' the check was not delivered or used, and the amount was not paid in settlement or otherwise. The entry was simply an inaccurate statement, made by an oversight to a stranger to the present suit; a statement which mislead no one, and of which neither Mrs. Osborne nor Klaber was aware. Such a statement certainly created no estoppel, nor did it any wise affect the real facts of the casa

The conclusion is inevitable, from all the facts, that this action is without merit, and that the complaint should have been dismissed.

The judgment must, therefore, be reversed' and a new trial ordered, with costs to the appellants to abide the event.

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


author: Yak Brunt, P. J.

text:
    Gerard Beekman et al, Trustees, App’lts, v. Susan Van Dolsen, Ex’rx, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Guabanty—By lessobs against expenses incubbed against teespassbb.
    By an instrument reciting that as trustees and as individuals they had leased certain premises to defendant’s testator; that a power of attorney to * B. and T. against whose acts they had guaranteed as individuals, had been revoked at their request, and that T. continued to enter upon the premises, plaintiffs requested said testator to treat said T. as a trespasser and agreed to be responsible for any ‘ ‘ cost and damage which may be incurred ” by him in so doing. Held, that it was the intention of plaintiffs to bind themselves in the same capacities iirwhich they had executed the lease, and that any cost or damage incurred by defendant could be properly counterclaimed in an action for rent and breaches of the covenants of the lease.
    3. Same—Construction.
    Such guaranty was an indemnity-against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered.
    3. Same.
    Such guaranty does not cover the value of personal services in suits against T. as a trespasser; nor costs and disbursements incurred in suits for monetary claims against T. and his lessees for use of the premises.
    Appeal by the plaintiffs from a judgment entered in favor of the defendant’s testator for the balance of a counterclaim over and above the amount recovered by the plaintiffs; and also from an order denying plaintiffs’ motion for new trial, and also from -order granting the defendant an extra allowance.

      Wm. Mitchell, for app’lts ; C. Norwood, for resp’t.
   Yak Brunt, P. J.

action was brought by the plaintiffs .as trustees aud as individuals, they being as such trustees and individuals lessors in a certain lease made by them to the defendant's testator, Abraham Yan Dolsen, to recover various sums of money in four causes of action. The first was to recover the value of the rent pursuant to the terms of the lease. The second was to recover the value of a certain retaining wall, bulkhead and dock, which were on part of the demised premises at the beginning of the term, but which, it was claimed, were negligently suffered and permitted to be injured and destroyed by the lessee. The third cause of action was to recover a sum of money claimed to be due from the defendant’s testator pursuant to a written agreement made in reference to the erection of a small wharf or dock on the -demised premises. The fourth cause of action was to recover ■damages occasioned by the failure of the defendant’s testator to ■deliver the demised premises in as good a state and condition as reasonable use and wear would permit.

The answer denied all liability upon the various causes of action set out in the complaint, and alleged as a defense to each cause of action that immediately prior to, and at the time of, the execution of the lease mentioned in the complaint, December, 1880, one Brainerd and one Thompson were in possession of the premises described in the lease, with the assent of the plaintiffs, and that cotemporaneously with its execution, at the express instance and request of the plaintiffs, there was executed and delivered between the defendant and said Brainerd and Thompson an instrument whereby the defendant appointed said Brainerd and Thompson his true and lawful attorneys, in. Ms name, place and stead, to collect wharfage, rents, issues and profits out of and to grow due to him under the said indenture of lease; that said Brainerd and Thompson, one or both of them, after the execution of' the lease continued in the actual and physical possession of the premises until about the 1st of June, 1882, and that cotemporaneously with the instruments above mentioned the plaintiffs executed and delivered to defendant an instrument, which, after reciting said lease and power of attorney, proceeds as follows:

“Now, these presents witness that we, Gerard Beekman and James William Beekman, as individuals only, in consideration of the foregoing premises, and of one dollar in hand paid, do hereby agree to and with the said Abraham Yan Dolsen to hold him, the said Abraham Yan Dolsen, harmless as to the acts of the said William C. Brainerd and George S. Thompson, performed under the said power of attorney. Provided always, that he, the said Abraham Yan Dolsen, revokes the said power of attorney upon the request made by us after reasonable notice that he make such revocation; ” that subsequently, in January, 1882, the plaintiffs executed and delivered to the defendant another instrument, which, after reciting the lease and power of attorney', and that they had revoked and annulled" the guarantee of said Brainerd and Thompson, and that the defendant in consequence thereof had revoked said power of attorney, and that, as they were informed, said Thompson continued to enter upon said demised premises, notwithstanding such revocation, and contrary to the wishes of said Yan Dolsen, proceeds as follows: “Now, therefore, in consideration of the premises, we jointly and severally request the said Yan Dolsen to treat according to law the said George S. Thompson as a trespasser on the said dock premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damage which may be incurred by the said Yan Dolsen in treating according to- law said Thompson as a trespasser as aforesaid; ” and that, after the execution of said instrument, the defendant proceeded against Thompson as a trespasser upon said premises, and expended a very large amount of his personal time in so doing prior to the 11th of November, 1882, of the value of $1,000, and incurred costs and expenses in legal proceedings and otherwise, and was damaged in the sum of $1,500; and the defendant demanded judgment for the sum of $2,500, and that the plaintiffs’ complaint be dismissed, with costs.

The plaintiffs replied to the counterclaim by alleging that the lease in question was executed by virtue of authority conferred upon them by the will of James W. Beekman, deceased, and that the premises demised in said lease formed .part of ' the undivided residuary estate of said testator, and denied that the various papers referred to in the answer formed part of said' lease and alleged that the possession of Brainerd and Thompson was the possession of the defendant They also denied that the instruments mentioned were executed at their express instance and request, and admitted that they were executed at their suggestion ; and said pleading contained various other allegations and denials which it is not necessary to mention here. Upon the trial a verdict was found by the jury, under the direction of the court, in favor of the plaintiffs on the first cause of action and in favor of the defendant as to the second and fourth causes of action; and no proof having been offered as to • the third cause of action, the court dismissed the same upon the motion of the defendant. A verdict was found for the defendant upon the counterclaim for the sum of $2,500, leaving a balance of some $884 in favor of the defendant over and above the amount of rent found to- be due.

After the rendition of the verdict, and before judgment, the defendant died, and the action was revived in the name of the present defendant as his executrix, and a motion having been made for an extra allowance, an allowance of $500 was granted to the defendant and a similar motion upon the part of the plaintiffs was denied; and a motion having been made for a new trial, the same was denied; and from said judgment and orders in respect to the extra allowance and denying the motion for new trial this appeal is taken.

Upon the trial the defendant offered proof, under his cause of action to recover upon the guarantee mentioned in his answer, showing the commencement of various litigations in respect to the property mentioned in the lease; and also claimed to recover, and did recover by the verdict of the jury, compensation for the time spent by him in respect to these various litigations.

It was insisted upon the trial, and is now urged by the appellants, that the defendant’s claim for damages under the guarantee was not the proper subject of a counterclaim, because the guarantee was made by the plaintiffs as individuals only, whereas the causes of action set out in the complaint were in favor of the plaintiffs as trustees as well as individuals.

We think that an examination of the instruments in question will show that this contention is without foundation, and that in the guarantee of January 19, 1892, made after the revocation of the power of attorney, the plaintiffs bound themselves in both capacities in which they seek to maintain this action. • The guarantee commenced with the recital: “Whereas * * * Gerard Beekman and James W. Beekman, * * * as trustees of the estate of James W. Beekman, and as individuals, did grant,” etc. “And whereas * * * the said Van Dolsen did, at our request, appoint said Brainerd and Thompson," etc. “ And whereas * * * we did revoke and annul said guarantee,” etc., “How, therefore, in consideration of the premises, we jointly and severally request the said Van Dolsen to treat according to law said Thompson as a trespasser upon said premises, and in consideration of the premises and one dollar we hold ourselves responsible for any cost or damage which may be incurred by said Van Dolsen in treating said Thompson according to law as a trespasser,” etc.

It is clear that the guarantors described in the recitals of the instrument were the plaintiffs as trustees and as individuals, and the use of the words “we ” and “us” throughout the instrument refer clearly td this recital. Such being the case, it would seem that there was an attempt upon the part of the plaintiffs to bind themselves in both capacities, and that it was not intended to be simply an individual obligation, and that this was the intention and understanding of these plaintiffs is apparent when we read the guarantee of the 2d of December, 1880, given to Yan Dolsen as to the acts of Brainerd and Thompson performed under the power of attorney. That reads: “Whereas, the said Yan Dolsen lias at our request, as individuals, by duly executed power of attorney, appointed,” etc., “Now, these presents witness that we * * * as individuals only, in consideration of the foregoing premises, do hereby agree,” etc.

The wording of this instrument clearly shows that when the plaintiffs intended to bind themselves only as individuals they were in no doubt as to what language to use. But in the subsequent instrument, which forms the basis of the counterclaim, they referred to themselves as trustees and individuals, and, without any attempt to separate their interests, executed the instrument. We think that it was plain that there was an intention upon the part of these plaintiff's to bind themselves by this guarantee in the same capacities in which they had executed the lease.

It is further claimed that the defendant could counterclaim under the guarantee what would be only the amount in which he was legally damnified, and not the amount for which he was legally liable, and that no proof of such damage was offered. It is urged that the law is settled in this state that where the guarantee is against any liability, then the costs and legal damages which may have been incurred may be recovered; but where the contract is a guarantee against damage, or a guarantee against loss, actual damage or actual loss must be shown before a recovery can be had.

But it seems to us that, applying the rule above claimed, the point urged is not -well taken. The guarantee is not against damage which may be suffered, but against cost and damage which may be incurred. Suffered means paid; incurred means become liable for.

The language is “ we hold ourselves responsible for any cost and damages which may be incurred by said Yan Dolsen;” not “which he may suffer;” and the purport of the language is the same as though it read “which he may become liable for;" because the incurring of a liability does not necessarily mean that such liability lias been paid. This guarantee, therefore, seems to be an indemnity against liability incurred in the shape of costs and damage, and not simply an agreement to indemnify and save harmless for damage suffered.

We think, however, that the objection that the defendant was allowed to recover the value of personal services in these proceedings against Thompson was well taken. The guarantee did not contemplate indemnity for personal loss of time. It was against all costs and damage which might be incurred by him, and it seems to us that it is plain that these terms referred to liabilities, and not to personal claims for services rendered. Costs and damage incurred do not seem to refer to claims for personal services, but rather to expenses' and obligations incurred to others in carrying out the request of the guarantors.

The appellants also claim that the defendant was allowed to recover for counsel fees and disbursements incurred in treating Thompson as a trespasser in excess of the terms of the guarantee, and that the various litigations which were commenced against Thompson and his licensees or lessees were not such as were contemplated by the guarantee. Various of these suits were brought to recover for the use of the premises by lessees of Thompson, and also against Thompson for the misappropriation of certain wharfages received prior to the date of the guarantee in question. These do not seem to be legitimate items of damage under the terms of the guarantee. It would seem to have been the intention and the scope of the guarantee that Van Dolsen should be indemnified in his attempts to eject Thompson as a trespasser from the premises; which is manifested by the recital that Thompson “ continues to enter upon the said demised premises notwithstanding the said revocation and contrary to the wishes of said Van Dolsen.” It had no relation, therefore, to monetary claims of the defendant against Thompson and his lessees; whatever may have been the claim of the defendant under the instrument of December 2, 1880, which was executed by the plaintiffs as individuals only.

Several other exceptions have been called to our attention, some of which seem to be well taken, but, in view of the fact that a new trial must be had, it is not necessary to discuss them.

We are of opinion that the judgment and order appealed froth should be reversed and a new trial ordered, with costs to appellants to abide the event, and that the order in respect to an extra allowance should be affirmed, without costs.

Follett and O’Brien, JJ., concur.


text:
    John Crosby Brown et al., Resp’ts, v. James Gray et al., Impleaded, App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Jurisdiction—Maritime liens.
    An equitable action to enforce a maritime lien and to adjudicate as to the existence of liens claimed by others and determine their amount cannot be prosecuted in a state court. Of such actions the federal courts have exclusive jurisdiction.
    Appeals from orders directing the appellants to deposit with the Central Trust Company of New York all moneys collected on account of freight, less certain charges for wharfage, lighterage and port charges.
    The United States & Brazil Steamship Company is a corporation organized under the laws of this state, and when the transactions occurred out of which this litigation arises it was a common carrier of freight and passengers between the port of New York and various ports in South America. Among other steamers used in their business were the “ Kate ” and “ Joshua Hicholson,” both British vessels. The “ Kate ” was owned by the defendant James Gray, and on the 15th of December, 1892, was hired to the corporation for two round trips from ports in the United States north of CapeHatteras to ports in Brazil or in the Argentine Republic.
    The “Joshua Nicholson” was owned by the defendants Stephens and Mauson, and on the 16th of December, 1892, was hired'to the corporation for two round trips from the port of New York to ports in Brazil or in the Argentine Republic. Bach vessel made one round trip from the port of New York, and about the time of the termination of their trips the corporation became insolvent and a receiver of it was appointed.
    The owners of the vessels, agreed to furnish sufficient officers, seamen and employees to navigate the steamers. The charterers agreed to pay a sum specified for each calendar month for the time which the steamers were employed. Both charter parties contained a provision that the owners should have a lien on all cargoes of freight for the amount due them on the contract. In 1892 and 1893 the plaintiffs issued to the corporation certain letters of credit, under which the steamship company became indebted to the plaintiffs in large sums of money. When the letters were issued it was agreed that all freight moneys earned and to be earned by the corporation were “pledged and hypothecated to the plaintiffs as collateral security for the payment ” of .all moneys advanced under the letters of credit. This action was brought originally against the corporation as the sole defendant, for the purpose of having th¿ sums advanced by the plaintiffs under their letters charged as a lien on the freight moneys earned and to be earned, and to restrain the corporation from collecting those moneys. A temporary injunction was granted restraining the corporation from collecting the money for freight.
    The Atlantic Trust Company is a trustee for holders of bonds secured by a mortgage executed by the corporation July 1,1889, upon its property as security for the bonds issued pursuant to the mortgage. The trust company claims to have a lien upon the freight moneys, and March 15, 1893, it was, by an order of the court, on its own petition, brought in as a party defendant in the action. On the same date an order was made that the steamship -company deposit with the Central Trust Company, to the ■credit of this action, all freight moneys then in its possession, and all which should thereafter be earned.
    March 22, 1893, upon the motion of the plaintiffs, James Gray, the owner of the “Kate,” and John Stephens and Henry Mauson, the owners of the “Joshua Nicholson,” were ordered to be brought in as parties defendant. Pursuant to this order, the summons and complaint were amended, and these persons named as defendants in the action. By the amended complaint it is alleged that James Gray was the owner of the “Kate,” and that Stephens .and Mauson were the owners of the “ Joshua Nicholson,” and chartered them to the steamship company. It is also alleged that said owners have, or claim to have, 'some interest in the freight moneys earned by those vessels “ on the voyages of said steamers last terminated, or about to be terminated, by reason of certain unpaid charter hire due or owing to them upon said steamers, and certain moneys advanced by them for disbursements of said steamers.”
    It is also alleged that the owners, through their agents in the city of New York, are collecting the freight moneys and threaten to apply them to their own use, and have refused to deliver it to the plaintiffs, though requested so to do.
    The sums which the steamship company agreed to pay for the use of the vessels have not been paid, and the owners were compelled to pay certain sums for port charges. The owners, through their agents in the city of New York, have collected the freight moneys due at the port of New York, and claim to hold them as security for the amount due under the charters, for disbursements in delivering the cargo, for a claim made for coal, and for damages for refusing to load the vessels for the second agreed voyages.
    The appellants have not been served with process, nor have they appeared in the action except specially for the purpose of moving to vacate the injunction and for the purpose of this appeal.

      J. Parker Kirlin, for app’lts; Willard Parker Butler, for resp’ts.
   Follett, J.

Under the charterparties, the owners of the vessels had liens on the freight moneys for the sums due them for the use of their ships. Bags of Linseed, 1 Black, 108; The Bird of Paradise, 5 Wall., 545. By the terms of the .charterparties, the vessels were to b.e navigated by officers and crews furnished by the owners and at their expense, and at the time when the owners enforced their liens upon the freight they had legal possession of the ships.

In Clarkson v. Edes, 4 Cow., 470, it was held that when, by the terms of a charterparty, a vessel is to be navigated at the expense of the owners, they must be deemed to be the owners in possession.

Whether the owners have a lien on the freight moneys for all the items which they claim is not necessary to be determined, for we are of the opinion that this court has not jurisdiction to adjudicate upon the conflicting claims of these litigants.

Section 3 of article 3 of the constitution of the United States provides that the judicial power of the courts of the United States shall extend to all cases of admiralty and maritime jurisdiction. Pursuant to this provision § 711 of the Revised Statutes of the United States was passed, which provides: “ The jurisdiction vested in the courts of the United States in the cases and pro-, ceedings hereinafter mentioned, shall be exclusive of the courts of the several states. * * * Third. Of all civil causes of admiralty and maritime jurisdiction; saving to suitors, in all cases, the right of a common law remedy, when the common law is competent to give it.”

The same statutory provision is contained in subdivision 8 of § 563 of the Revised Statutes of the United States. Under this statute it has been repeatedly held that controversies arising out of maritime contracts must be enforced in the United States ■courts, unless the remedy sought is one which can be obtained in a common law court. The Hine v. Trevor, 4 Wall., 55; The Belfast, 7 id., 625; Town of Pelham v. The Schooner R. F. Woolsey 3 Fed. Rep., 457.

The learned counsel for the respondent cites many cases, and many more might be added, holding that actions for the recovery of damages—common law action—for breach of maritime contracts may be maintained in the courts of the several states; but he cites no authority holding that an equitable action brought to enforce a maritime lien can be prosecuted in such courts. Of such actions the federal courts have exclusive jurisdiction.

The case at bar is an equitable action, brought in the first instance to enforce a maritime lien in favor of the plaintiff, and by the amendment to the complaint it is sought to adjudicate as to-the existence of the maritime liens claimed by the appellants, and if found to exist, to determine their amount. This, under the decisions, we think, cannot be done.

The orders appealed from should be reversed, with ten dollars-costs and printing disbursements, and the motion to vacate the injunction granted, with ten dollars costs.

Van Brunt, P. J., concurs.


text:
    Jane McKenzie et al., Ex’rces, Plff’s, v. Loftus D. Hatton, Def’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Landlord and tenant—Eviction—License to enter to preserve, building prom adjoining excavation.'
    A license given pursuant to § 474 of the Consolidation act, by the owner of a demised building to parties intending to excavate on adjoining premises, to enter, said building and do all things necessary for the preservation of the building and its walls, dobs not constitute the contractors the servants or agents of such owner, or render him liable to his tenant for ai.y acts of theirs which interfered with the tenant’s business or his enjoyment-of the building.
    2. Same.
    An entry so made is also necessarily under the authority of the tenant. Either that or it was a trespass, notwithstanding the landlord’s permission. If the contractors exceed the limit of the tenant’s license he has his-remedy against them.
    3. Same.
    There can be no eviction where the tenant continues in legal occupation and does not relinquish possession.
    4. Same—Counterclaim.
    A cause of action for injuries done to a tenant or his business, through an entry as aforesaid by a third person, is not the proper subject of a counterclaim in an action for rent.
    Verdict for plaintiffs directed at circuit. Exceptions ordered to be heard, in the first instance, at general term.

      Edward W. S. Johnston, for plff’s ; Foley & Powell, for deft.
   Barrett, J.

This action was for rent. The lease was admitted ; also the nonpayment of the rent. The sole defense was a partial eviction. This was pleaded, first, as a defense, and then as a counterclaim. Upon the trial, the plaintiffs proved the lease:- and rested. The defendant then gave evidence tending to show that, in - the month of Julv, 1892, certain contractors began" to-excavate, for the purpose of building, upon the lot adjoining the demised premises; and, desiring to go ten feet below the curb,, they obtained from the plaintiffs the ordinary license to enter, as called for by the consolidation act, Laws of 1882, chap. 410, § 474. This license was in the following language:

New York, June 28, 1892. Messrs. Larkin & Son, Contractors, &c.

Dear Sirs—In respect to the excavation which you are making at 18 and 20, &c., Washington place, and adjoining the property No. 35 West Fourth street on the rear, owned by our clients, you will take notice that you are hereby permitted to enter upon said premises, No. 35 West Fourth street, to do all things necessary for the purpose of preserving the walls and building of said premises from injury, and that you will be held responsible under the law for any injury that may occur.

Respectfully yours,

D. J. Newland,

Attorney for Jane McKenzie, executrix and trustee, &c., 121 Nassau street, N. Y.

Johnston & Johnston,

Attorneys for Alice J. Jones, executrix and trustee, &c., 8 and 10 Centre street, N. Y. City.

Armed with this paper, the contractors called upon the defendant, who told them that he required security against loss or damage; that he had not given them authority to enter, and that he would hold them responsible for entrance until he had consulted his counsel. The contractors, however, insisted upon entering, telling the defendant that they were bound to go ahead with their business, and that they did not care if they tore the building down. “ Then,” said the defendant, “ I called them, "in presence of my engineer, and told them, under their authority to enter from the landlord, to make arrangements with the engineer at what time they desired to enter, what they desired to do, and to notify me; the engineer to notify me as the work went along, so as to keep me posted.as to what they were doing.”

There was an engine in the basement of the premises in question, which was connected with the second floor by means of belting and shafting, and which was used to furnish power for the purpose of the defendants business.

After the above conversation, the contractors entered the premises and proceeded to insert beams in the basement walls and in the passageway going up stairs. They inserted these beams at. such points and in such a manner that the engine could not be run. The consequence was that, for want of such power, the defendant was unable to use his second floor for the purpose t® which he had devoted it This condition of things lasted for several months, and constituted the partial eviction of which complaint is made.

.Upon this state of facts a verdict for the plaintiffs was directed; and, we think, properly. The plaintiffs were in no wise responsible for the acts complained of. Their license was to enter, to do what was necessary for the preservation of the demised premises, not to do anything which might injure them. The moment the -contractors did anything contrary to the terms of the license, they became trespassers, and the defendant had his remedy against them for the damages caused by their unauthorized acts. Those contractors and their employes were not the owner’s servants. Nor were they brought within that relation by the license. The .sole effect of the license was to throw upon the person makihg the excavations the duty of preserving the wall of the demised premises from injury. Consolidation act, above cited. That duty is, by the act, dependent upon the granting of the license. If, therefore, such license had been here refused, and in consequence the wall had been injured, the defendant would have had just cause for complaint against the plaintiffs. He certainly had no such cause where the license has been given, but abused.

The defendant also overlooks the fact that the entry here was necessarily under his own authority. Either that, or it was a trespass, notwithstanding the plaintiffs’ license. The defendant had exclusive possession of the premises under his lease, and he could not be disturbed in that possession without his own consent. His license, as well as that of the owner, was therefore necessary. Johnson v. Oppenheim, 55 N. Y., 280; Sherwood v. Seaman, 2 Bosw., 130. And if the contractors exceeded the limits of such license, the defendant had his remedy.

The defendant asked to go to the jury on the question of eviction, and also as to 'the damages claimed in his counterclaim. This was properly refused, for two reasons : First, because there was no eviction, in that the defendant has continued throughout in the legal occupation of the entire premises. Boreel v. Lawton, 90 N. Y., 297. He never relinquished possession even of the engine room or second floor. Second, because a counterclaim was not available in an action on the lease for rent due thereunder. Eviction was necessary to constitute a breach of the covenant of quiet enjoyment ; but, as we have seen, there was no eviction. For the wrong done to the defendant the plaintiffs, as already pointed out, are not responsible. But, even if 'they were, the right of action for that wrong could not be the subject of a counterclaim, for the reason, as was said in Boreel v. Lawton, supra, that it does not arise out of the contract or transaction set forth in the complaint, nor is it connected with the subject of the action, nor is it a cause of action on contract. See the cases there cited: Edgerton v. Page, 20 N. Y., 281; Lounsbery v. Snyder, 31 N. Y., 514; Home Ins. Co. v. Sherman, 46 N. Y., 370; Levy v. Bend, 1 E. D. Smith, 169.

The exceptions should, therefore, be overruled and judgment rendered for the plaintiffs on the verdict, with costs.

Yak Brukt, P. J., and Follett, J., concur.


author: Herrick, J.

text:
    William A. Fullerton et al., App’lts, v. William McLaughlin, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Principal and agent—Authority to make contract does not include POWER TO ALTER OR EXTEND IT.
    On applying to defendant for the purchase of certain real estate, plaintiffs were told by him that ins son in law. L., did all his business, and a contract was drawn up with the description blank and sent to L. Held, that such statement should be deemed to apply to the business then being transacted, viz., the making of contracts for the sale of lots; that L. was authorized as defendant’s agent to fill in the description, but had no authority to cancel, extend or modify the contract,
    3. Contract—When time of the essence.
    The contract provided that plaintiffs were to pay the balance of the purchase price in one year, and if not then paid the contract to be void. Held, that the time of payment was of the essence of the contract, and not having been waived or extended, plaintiffs, not having paid within that time, were not entitled to a specific performance.
    Appeal from judgment in favor of defendant dismissing the complaint.
    Action for specific performance of a contract for the sale of real estate. Plaintiffs called upon defendant to purchase certain lots belonging to him, who told them that one La Fountain, his son in law, did all his business and he would rather they would wait and see him about it, but finally went with them into the field, where plaintiffs chose two lots, for which they were to pay $200 ; ten dollars to be paid down and the balance in one year. A contract was drawn, with the description in blank, providing that if the money was not paid in one year the contract should be void, which was sent to La Fountain to be filled with a proper description; which was done and the contract executed by defendant. Thereafter La Fountain informed plaintiffs that there was some difficulty about the title. About ten days before the year expired plaintiffs took the contract to La Fountain and told him the money was ready and they wanted the deed, but La Fountain told them he could not give such a deed as the contract called for, but took the contract and said he would either give the deed or renew the contract, and subsequently wrote offering to refund the sum paid with interest, as the difficulty about the title was not straightened out and there was no prospect that it would be. In the spring following plaintiffs went to both La Fountain and defendant and offered to pay for the land and demanded a deed, which was refused on the ground that the contract had run out.
    The following is the opinion of the court below:
    Putnam, J.—I think that all the evidence in, and facts of the ease, indicate that La Fountain was, to a certain extent, the agent of the defendant. The contract was drawn with a blank space left to be filled in with a proper description of the lots agreed to be conveyed, and I infer from the evidence that La Fountain, as defendant's agent, was authorized to write in the contract the proper description of the lots, and hence that the contract as read in evidence was a valid and authorized contract.

      But although La Fountain was an agent of defendant to make the contract that fact did not give him, either actually or presumptively, any authority to cancel, extend or modify it. The admission of defendant proved by several witnesses, that “Mr. La Fountain did all his business for him,” should be deemed to apply to the business then being discussed and transacted, the making of contracts for the sale of lots. The contract being made, and the right of the parties fixed and determined by the writing, the admission of defendant should not be construed to mean that La Fountain had authority to modify or extend or change the contract When this written contract was made the agency must be deemed to have ceased, in the absence of competent evidence of its continuance.
    It was for plaintiffs to show such continuance. Under well settled principles they could not show such continuance by the agent’s declarations. But they show it in no other manner. The plaintiff Mould testified that the first time he saw defendant after the making of the contract, the latter said that La Fountain was not authorized to extend the contract or to act as his agent. I conclude, therefore, that plaintiffs fail to show a valid extension of the time to perform the contract. They show the agency of La Fountain to the making of the conract. But such agency does not give him power to modify, change or extend it. See Brewster v. Carnes, 103 N. Y., 556; 4 St. Bep., 264; Bitch v. Smith, 82 N. Y., 627; Bickford v. Menier, 107 id., 490; 12 St. Rep., 304; Edwards v. Dooley, 120 N. Y., 551; 31 St Rep., 710; Smith v. Kidd, 68 N. Y., 130-1.
    By the terms of the contract plaintiffs were to pay the balance of the purchase price one year from its date, and if said money was not then paid the contract should be null and void. I think, therefore, that the time of the payment was of the essence of the contract. Wells v. Smith, 2 Éd. Ch., 78; Wells v. Smith, 7 Paige, 22.
    Hence, the time of payment being by the terms of the contract material, and strict fulfilment of the terms of the contract not having been' waived or extended by defendant, I conclude that plaintiffs are not entitled to a specific performance.
    The complaint should be dismissed, with costs.

      J. W. Webb, for app’lts; Kellas & Munsill (John P. Kellas, of counsel), for resp’t.
   Herrick, J.

It seems to me that this case should be affirmed upon the opinion of the court below.

The agency proved, it seems to me, did not grant power to extend or modify the written contract.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    Darwin W. Sherman, Resp’t, v. Lyman Jenkins, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Assignment for creditors—Burden of proof.
    Where an assignment of a partnership for the benefit of creditors is valid: upon its face, and shows that the person signing it was authorized to do so, the burden of showing its invalidity, for reasons outside the record, is upon the person assailing it.

      % Same—Partnership property—Estoppel.
    Where the property in question was used by the partnership in the transaction of its business, the assignee of one of the partners cannot he permitted to assert an alleged individual ownership thereof by his assignor, and that it was not copartnership property, as against its creditors.
    3. Pleading—Admission by demurrer.
    Where certain defenses in the answer are demurred to and the demurrer overruled, and plaintiff fails to avail himself of a permission to reply, the judgment on the demurrer remaining on the record is an admission of the facts set forth in such defenses.
    4. Replevin—Detention.
    The defenses so demurred to alleged that after the assignment and before the commencement of this action plaintiff’s assignor and another brought action against defendant for the recovery of said chattels, which action is still pending, and that in such action an injunction was procured restraining defendant from disposing of, or interfering with, said property, and that such injunction was in force when the demand was made by plaintiff. Held, that there was no wrongful detention, and as there was no unlawful taking originally, an action of replevin could not be maintained.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Action to recover the possession of four horses and two pairs of sleighs.
    In April 1887, a co-partnership was formed in Glens Falls, N. Y., under the name and style of the New York & Oriental Tea Company. This company was composed of William H. Bobinson and Godfrey B. Martine. The place of business was Glens Falls, N. Y., whence teams were sent with goods through the adjoining country. The property in litigation in this action is property that was used in this business. During all of the time the property was cared for at the company’s expense, and when at home was kept on the company’s premises. The defendant claims that this property, on the 29th day of January, 1890, was the property of the company; the plaintiff .claims that it was the property of one Godfrey B. Martine, from whom he purchased it a few days before the suit was brought, and was only put in the business of the company at work by Martine.
    On the 29th day of January, 1890, the company made. an assignment for the benefit of their creditors to this defendant, who duly qualified and took possession of all the company’s property, including this in litigation, and entered upon the discharge of his duties. On the 19th day of February, 1890, the defendant, pursuant to advertisement, was going to sell at public auction all the property of the company, including this in litigation. The same day an action was commenced in the supreme court by Homer J. Martine and Godfrey B. Martine, against William H. Bobinson and Lyman Jenkins, as assignee in trust for the benefit of creditors of the New York & Oriental Tea Company and William H. Bobinson, individually. In this action the plaintiffs alleged that they and defendant, Bobinson, were the co-partners ■composing said company; alleged that this property in litigation. was the individual property of Godfrey E. Martine; asked for an injunction restraining this defendant from doing anything whatever with the property of the company, including this in litigation, and further asked that this property be adjudged to belong to Godfrey R. Martine and he be awarded the possession of the same. At the same time the plaintiffs procured an injunction restraining the defendant from doing anything or in any manner interfering with this property. While this action was pending and while this injunction was in force the alleged sale to the plaintiff in this action was made as well as the demand for the property from this defendant, and within an hour thereafter this suit was commenced.
    The plaintiff demurred to the third and fourth defenses, in the answer in this action, on the ground that they were insufficient-in law upon their face. The demurrers were overruled, with leave to the plaintiff to withdraw them at any time within twenty days from the entry of the order overruling them, on payment to the defendant’s attorneys of $35 costs. The condition of the order was not complied with, and the demurrers remained on the record of this case at the time of the trial.

      Cameron & McArthur (T. W. McArthur, of counsel), for app’lt; A. Armstrong, Jr., for resp’t.
   Herrick, J.

The assignment to the defendant on its face was a valid assignment; the burden, therefore, was on the plaintiff to prove that it was invalid for reasons outside of the record. Hooper v. Baillie et al., 118 N. Y., 413; 29 St. Rep., 52.

I have been unable to find anything in the evidence in the case proving, or tending to prove, that the member of the co-partnership, who signed the instrument of assignment was not authorized to do so by his co-partner, as set forth in the acknowledgment. The defendant would, therefore, lawfully become possessed of all the co-partnership property.

The plaintiff’s assignor was a member of said co-partnership.

' The property in question was in the possession of and used by said co-partnership in the transaction of its business; it must have been so with the knowledge and consent of plaintiff’s assignor; and as against the creditors of the co-partnership the plaintiff ought not to be permitted to assert the alleged individual ownership of his assignor therein, and that it was not co-partnership property.

The defendant represents the interests of the creditors of said copartnership.

I think the referee erred in the v,iew taken by him of the assignment He seems by his qualifications of the defendant’s request to (find that the co-partnership executed an assignment for the benefit of creditors to the defendant, to have held that it was necessary for the defendant to prove that plaintiff’s assignor exe-' cuted such assignment, or authorized or consented to his co-partner doing it for him.

This, as we have already seen, was not incumbent upon the defendant to show, the assignment being valid upon its face, and showing that the person signing it was authorized to sign it; if in fact there was no such consent and authority given, it was for the plaintiff to prove that fact, which he has failed to do.

The referee also erred in his holding in regard to the third and fourth counts in defendant’s answer.

They had been demurred to by the plaintiff, and the demurrers overruled, and the plaintiff had failed to avail himself of the permission granted to him of replying to such counts in the answer, the judgment upon the demurrers was of record, and so remaining on the record was an admission of the facts set forth in such counts. Cutler v. Wright, 22 N. Y., 472.

The third count of said answer alleges that the plaintiff’s assignor and another commenced an action against this defendant and another, after said assignment, in which they alleged that plaintiff’s assignor was the owner of the same property which is in question in this action, and demanded, among other things, that he be so adjudged the owner of said property, and that the defendant therein be directed to deliver the same to plaintiff’s assignor, and that such action was still pending against this defendant at the time of the commencement of this action, and so commenced before the plaintiff claims to have acquired his title to the property in question; that plaintiff procured his alleged title to said property during the pendency of such action, and with full knowledge that it was pending.

The fourth count in said answer alleges that in the action set up in the third count an injunction was granted enjoining and restraining the defendant from disposing of, or interfering with said property, and that the demand made upon defendant by the plaintiff for the property in question herein was made while said injunction or order was in force, and with the knowledge by the plaintiff of the pendency of said action, and of said order.

These things so alleged being admitted by the demurrer, as before stated, there was no wrongful detention of the property by the defendant, even admitting that he had no lawful title to it under the assignment, and as there was no unlawful taking of the property by the defendant originally, there is nothing, it seems to me, upon which an action of replevin can be sustained.

The decision of the special term upon the demurrer being unreversed, was binding upon the referee, and as to him it was a final decision in the case as to the question decided by it, and the referee erred in considering it an open question to be passed upon by him. For these errors judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


author: Putnam, J.

text:
    George N. Cottrell, Sup’r, Resp’t, v. The Marshall Infirmary in the City of Troy, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Riparian owners—Negligence in construction op dam.
    In an action for damages to the roads and bridges of a town by reason of the bursting of defendant’s dam, there was evidence to show that there was no waste weir to the dam or flagging over the dirt filling between its walls. Held, sufficient to render the submission to the jury of the question of defendant’s negligence proper.
    2. Same—Duty as to construction.
    In such action the court charged that it was the duty of a dam owner to so construct it that it would resist all the water that would flow into it by the storms common in that locality and by extraordinary storms such as sometimes occur and are likely to occur, although at irregular intervals, in the vicinity: that he was not bound to guard against a storm of a phenomenal type, and submitted to the jury the question whether the storm, at the time the dam burst, was a very extraordinary one, such as had never occurred before in that vicinity. Held, no error.
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury.
    Action brought by plaintiff, as the supervisor of the town of Poestenkill, to recover for damages alleged to have been caused to the highways and bridges of said town by the giving away of the dam maintained by defendant, caused, as alleged, by the negligent construction and maintenance of said dam.
    The answer denied negligence, and alleged that the dam gave way by reason of an excessive and unprecedented accumulation of waters, caused by an extraordinary and unprecedented rain-fall or freshet, and that the giving way of the dam and precipitation of waters was the act of God, and did not result from any negligence of defendant.

      Robertson & Batchelder (Matthew Hale, of counsel), for app’lt; Moses Warren (Charles H. Patterson, of counsel), for resp’t.
   Putnam, J.

The position of the learned counsel for defendant, that negligence must be shown in order to make the defendant as owner of the dam liable, is undoubtedly correct. Losee v. Buchanan, 51 N. Y., 487, and cases cited.

But we think there was testimony in the case which rendered the submission of the question of defendant’s negligence to the jury proper.

There was no waste weir to the dam or flagging over the dirt filling between its walls. The expert witness, Eicketts, testified: “ It is not the proper and safe construction of a dam to build it without a waste weir.” Also: “I do not think you could speak with ‘ safety ’ in connection with such a dam; I do not think there is any such term to be used.” The witness Baerman, called by defendant, testified as to the dam: “ It was a good construction of the kind.” “Q. Do you consider that it was safe to build such a dam without building a waste weir ? A. I would not build one, but there are other circumstances which might modify somebody’s else’s opinion.” There was other evidence in the case indicating an improper construction of the dam, and hence negligence on the part of the defendant, which it is unnecessary to recapitulate. On the part of defendant much testimony was produced tending to show proper construction of the dam. We do not think, however, that such testimony was so overwhelming as to compel the trial judge to withdraw from the jury the question as to the construction of the dam.

The trial judge in his charge, in stating the degree of care a party should use in constructing such a dam, quoted from Angelí on Water Courses’ as follows: “It must be in proportion to

the extent of the injury which will be likely to result to third persons providing it should prove insufficient. And it is not enough that the dam is sufficient to resist ordinary floods, for if the stream is occasionally subject to great freshets, those must likewise be guarded against, and the measure of care required in such cases must be that which a discreet person would use if the whole risk were his own.” -He also charged as follows: “ The duty of the defendant was to so build it in the first instance that it would resist all the water that it was constructed to store in the first place. It must resist the pressure of all the water that could be got in it, relieved as it was or was intended to be by this bulkhead and this flume. If it failed to do that it was improperly constructed in law. It must resist all the storms and all the water that would flow into it by the storms common in the locality; and not only that, but all the water that would flow into it by extraordinary storms such as do sometimes occur and are likely to occur, although at irregular intervals, in this vicinity. Was it so constructed ? That question is for you. * *

It does not follow that the defendant was bound to guard against a very unusual storm that had never occurred but once before in the history of this vicinity, and that long years ago. The law does not exact any such thing as that of a party. Although a thing extraordinary in character, of a phenomenal type, has once occurred, it does not follow that it is to be anticipated, that it will occur again, and the law does not require anybody to guard against anything that is so phenomenal that it"" has only occurred once in the history of mankind. It is only such things as experience teaches are likely to occur that men must foresee and guard against. I must submit to you, and I do submit to you, the question whether this was not an extraordinary, a very extraordinary storm, one that had never occurred before in this vicinity.”

We are unable to discover any error in the charge of the learned trial judge. Angel on Water Courses, § 836; The Mayor, etc., of New York v. Bailey, 2 Den., 433-440,441; Gray v. Harris, 107 Mass., 492.

In the Mayor, etc., of New York v. Bailey, supra, it is held that “the dam should, therefore,have been constructed in such a manner as to resist such extraordinary floods as might have been reasonably expected to occasionally occur.” The trial judge in this case so charged, at the same time instructing the jury that if damage was caused by phenomenal flood that no one could expect, defendant was not liable.

We think there was evidence justifying the submission of the ease to the jury, indicating that the freshet which caused the dam to give way was one of the extraordinary floods which might be occasionally expected to occur, and not a phenomenal one, which no one could expect ever to occur.

The witnesses Hull, Dustin and Gfoyer testified to other occasions when water was as high as when the dam gave away. It also appears that in 1889 there was a larger rainfall than that which occurred at the time in question. This testimony justified the submission of the question to the jury whether the flood which caused the dam to give to giveaway was a phenomenal one, such as defendant was not compelled to guard against, or one of the extraordinary rainfalls occasionally occurring and which, as stated in The Mayor, etc., of New York v. Bailey, supra, defendant should have anticipated.

We think that the evidence in the case rendered the submission of the question as to the proper construction of the dam to the jury necessary, and that the verdict on such evidence cannot be disturbed.

We do not discover any error in the charge of the judge as to the liability of the defendant in the construction of the dam, assuming that the exception taken by defendant on the trial is sufficient to raise this question. The passage in the charge criticized by the learned counsel for appellant should be considered in connection with other parts of the charge. The instruction given by the court to the jury, taken together, we think correctly states the law applicable to the case.

Mor do we think the court erred in the charge as to the duty of Wager, the gate-keeper. There was testimony indicating that Wager discovered the dam washing away several days before the accident in question and took no measures whatever to protect it.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


text:
    Louise Freeman, Adm’rx, App’lt, v. The Glens Falls Paper Mill Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

      1. Master and servant—Negligence.
    Plaintiffs intestate was killed by the fall upon him. of an empty oil barrel while at work for the defendant. At the time of the accident he was engaged in placing a grindstone upon the elevator, his head projecting into the well. The well on the upper floor was closed on three sides and was protected on the other by two bars, the lower being movable. Intestate had used the elevator for two months, and had been directed to close the bar when descending. On the occasion of the accident he was the last to enter the elevator to descend and the bar was not put in place, and the barrel being put in motion by the vibration of the machinery in the building rolled into the well. The jury found that intestate saw the barrel standing near the well, and that it could not have fallen in if the bar had been in place. Held, that the jury could fairly find from these facts that the intestate contributed to the accident which produced his death.
    3. Same—Laws 1887, chaf. 463.
    The court charged that chap. 463, Laws 1887, had no bearing on the case if the jury found that the deceased knew that the elevator was not provided with automatic doors. Held, no error; that the statute was enacted for the benefit of employes and could be waived by them, and where one accepts and continues in the employment with full knowledge of the construction of the elevator, he voluntarily assumes the risks incident to the absence of a door, and waives the benefit of the statute.

      Appeal from judgment entered upon a nonsuit at circuit.

      T F. Hamilton, for app’lt; King & Ashley (J, S. L'Amoreaux, of counsel), for resp’t.
   Herrick, J.

The defendant was the owner and operator of a ,paper and pulp mill. The mill was three stories in height, and stood upon a steep bank; the upper story of the mill was on a level with the street; communication between the different stories of the building was had by means of an elevator passing up and down through a shaft or well. There was no trap or other door at the time of the accident to close the well on the upper floor through which the elevator passed. On the upper floor this well was closed on three sides ; on the remaining side were two bars, the upper bar was fastened to the posts of the well, the lower bar was one that could be moved backwards and forwards through clasps attached to the posts of the well, and when in position was about twenty-four inches above the level of the floor at one end and about twenty-five and one-half at the other.

The plaintiff’s intestate had been in the employ of the defendant about two months before the happening of the accident for which this action is brought, and used the elevator several times each day. There was evidence that instructions were given by defendant to its employes that when they passed through these bars to and from the elevator they should close the lower bar after their passage; that such instructions were given to plaintiff’s intestate; it is in evidence that on the day of and prior to the accident plaintiff’s intestate, upon entering the elevator to descend, left the lower bar out; that his attention was called to it by defendant’s foreman, who told him that the bar must be kept in place.

That it was the custom of defendant to keep temporarily machinery, barrels and other movable articles on the first, or upper floor. At the time of the accident there were one or more empty barrels upon the first, or upper floor. There is evidence to show that just prior to the happening of the accident the plaintiff’s intestate, with two or three other workmen, went down the elevator; that the last person to enter the elevator was plaintiff’s intestate; that as they descended the elevator the bar was not put in place, and that the elevator did not come back again to the upper floor until after the accident; that about fifteen minutes after the elevator went down this last time the plaintiff’s intestate, with others, were engaged in placing on the elevator, at the lower floor of the building, a large grindstone, using a stone-boat to move the stone to and upon the elevator. While endeavoring to adjust the roller under the stone-boat his head projected beyond the line of the well, an empty oil barrel upon the first, or upper floor rolled from its position, apparently put in motion by the vibrations of the mill caused by the workings of the powerful machinery, into the open well and fell upon his head, causing his death. To recover the damages resulting from such death this action was brought.

Upon the first trial the plaintiff was nonsuited; she appealed to this court, where the judgment of nonsuit was reversed. 61 Hun, 125; 39 St. Rep., 621.

The case being again tried, was- submitted to the jury, who found for the defendant, whereupon the plaintiff appeals to this court for a new trial. Upon this last trial the court submitted four propositions of fact to the jury, as follows:

First. Did not the deceased know the manner in which the first, or street floor of the mill was used, and the purpose for which it was used? Answer: Yes.

Second. Did not the deceased know that any empty barrels were permitted to stand temporarily on the street, or first floor ? Answer: Yes.

Third. Did not deceásed, on the day of the accident, at any. time see the empty oil barrel standing on the box by the. post, near the elevator ? A. Yes.

Fourth. If the lower bar had been in position across the elevator well, would the barrel have fallen in ? A. No.

There is evidence to sustain all these findings by the jury; they relieve the case of a number of the questions presented when it was formerly before this court.

The uncontradicted evidence shows that the intestate must necessarily have known that there was no door to the well of the elevator on the first, or upper floor; the evidence also shows that he was warned by defendant’s foreman of his duty to put the bar in place after entering, and before descending upon the elevator.

The jury have expressly found from the evidence that if the bar had been in place, the barrel would not have fallen down the elevator well; and there is evidence from which the jury could well find that the last time the elevator went down before the accident, where it remained until after the accident, the intestate was the last man to enter it, that neither he nor those wdth him put the bar in its proper place upon descending, so that I think the jury could fairly fine! that the intestate contributed to the accident which produced his death. If the failure of plaintiff’s intestate to obey the rules of the defendant, or the direction of its foreman, caused or contributed to the accident, the plaintiff cannot recover. La Groy v. N. Y., L. E. & W. R. R. Co., 132 N. Y., 570; 43 St. Rep., 711.

The appellant strenuously insists that the judgment should be reversed, and a new trial granted, by reason of an alleged error of the court, in its charge to the jury, as to the fact of the nonobservance of § 8, chapter 462 of the Laws of 1887, which provides in substance that the owners, agents or lessees of buildings having elevators must provide trap or automatic doors to such elevators, so constructed as to open and close by the action of the ■elevator in ascending and descending.

In relation to that statute the court charged as follows: “ This statute itself has no sort of bearing upon the case if you come to the conclusion, and I charge you as matter of law that you must come to the conclusion, that plaintiff’s intestate did know that this elevator was not provided with automatic doors. So that I apprehend, when you come to the discussion of the case, you will lay aside that provision of law because it has no bearing and cannot lead you to any proper conclusion, and ought not to have any weight in the jury box or jury room; it is not an element in this case. It is an' undisputed fact in the case that deceased did know the manner in which the elevator was constructed ; he knew what protection there was and he accepted the situation, accepted the employment, and did what he was doing on the day he was killed with the full knowledge of those tilings so far as the protection against danger which defendant had made to the elevator is concerned.”

. I do not think this charge constitutes reversible error; in substance it states the rule applicable to this case correctly. The statute was enacted for the benefit of employes; any one injured in consequence of its not being complied with has undoubtedly a right of action therefor. City of Rochester v. Campbell, 123 N. Y., 405-14 : 34 St. Rep., 77; Willy v. Mulledy, 78 N. Y., 310.

The action is not brought upon the statute, but is founded upon defendant’s alleged negligence. The violation of the statute by not furnishing doors to the well hole is undoubtedly evidence of the negligence charged, but it does not follow from that that, the charge was erroneous.

The duty prescribed by this statute is not more or greater than the common law duty of an employer to his employes to provide a safe place in which, and proper machinery with which, to work. And the defendant’s liability to the person injured by means of the statute not being complied with is not an absolute one, but is subject to the same limitations and restrictions as is the common law liability for not furnishing a safe place and proper machinery.

The defendant’s non-compliance with the statute would not relieve the plaintiff from the burden of showing a lack of contributory negligence on the part of the intestate. McRickard v. Flint, 114 N. Y., 222-27; 23 St. Rep., 100.

The duty imposed by the statute was for the benefit, among others, of plaintiff’s intestate ; it was one that could be waived by him, so far as he was concerned, in accepting employment of the defendant. Willy v. Mulledy, 78 N. Y., 310-15.

The absence of a door from the well was apparent, and must have been well known by plaintiff’s intestate; he worked there for weeks before the happening of the accident, used the elevator daily and several times a day, he knew of and was instructed what to do with the device that took the place of a door; it must be held that it was satisfactory to him, and that he waived the full and complete performance of the duty which defendant owed to’ him, and that he voluntarily assumed the risks incident to the absence of the door, Gibson v. Erie Railway, 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Anthony v. Leeret, 105 id., 591-600; 8 St. Rep., 542 ; Hickey v. Taafe, 105 N. Y., 26-35 ; 6 St. Rep., 426; Shaw v. Sheldon, 103 N. Y., 667; 3 St. Rep., 679; Appel v. D., N. Y. & P. R. Co., 111 N. Y., 550; 20 St. Rep., 90; Fredenburg v. N. C. R. Co., 114 N. Y., 582, 584; 24 St. Rep., 550; Williams v. D., L. & W. R. R. Co., 116 N. Y., 628 ; 27 St. Rep., 760 ; Odell v. N. Y. C. & H. R. R. R. Co., 120 N. Y., 323; 31 St. Rep., 27; Davidson v. Cornell, 132 N. Y., 228-34; 43 St. Rep., 887; and in taking that risk he waived the benefit intended by the statute, and as to him its provisions are not to be considered.

The court was correct also in charging the jury that they must come to the conclusion that plaintiff’s intestate did know that the elevator was not provided with automatic doors.

That it was not so provided was perfectly obvious and apparent, uncontradicted and undisputed. It was a matter the- plaintiff’s-intestate could not help knowing, and a specific finding to the contrary by the jury would have been properly set aside by the court as one not only contrary to the evidence, but wholly without evidence to support it.

The findings of the jury were sustained by the evidence, and the case was properly submitted by the court, and the judgment should, therefore, be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    The People ex rel. The Postal Telegraph Cable Co. v. Frank Campbell, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Tax—Corporations—Revision.
    A party who seeks a revision or readjustment of a tax settled by the comptroller under § 19 of the act, must produce evidence showing the error of such settlement.
    3. Same—Constitutional law.
    The provisions of chap. 543, Laws 1880, and the acts amendatory thereof and supplementary thereto, are not in conflict with either the state or federal constitutions, even though an assessment under the act may result in an unequal or double taxation.
    8. Same.
    The comptroller may, therefore, in determining the amount of the property of a corporation employed within the state, take into consideration its real estate, though subject to local taxation.
    4. Same—Interstate commerce.
    The tax may properly be imposed although the corporation is engaged in both state and interstate commerce.
    Certiorari to review the determination of the comptroller of the state, declining to set aside or reduce an assessment made against the relator.

      R. S. Guernsey, for relator; S. W. Rosendale, attorney-general (John W. Hogan, deputy attorney-general, of counsel), for resp’t.
   Putnam, J.

We are called upon in this case to review the action of the comptroller in declining to revise the tax settled against relator under the provisions of chapter 542, Laws of 1880, and acts amendatory thereof and supplemental thereto.

The relator suggests that since the amendatory acts of 1885 and 1889, under § 20, the comptroller is required to return to a certiorari the accounts and all the evidence submitted to him, and his decision, if found erroneous in fact or law, must be corrected by this court. This position is well taken, but it is held that the decision of the comptroller as to assessments and taxation, unless clearly shown to be erroneous, will not be disturbed. People ex rel A. C. & D. Co. v. Wemple, 129 N. Y., 558; 42 St. Rep., 400; People ex rel Osgood et al. v. Commissioners, 99 N. Y., 154. Hence, a party who seeks a revision or readjustment of a tax settled by the comptroller, under § 19 of the act, must produce evidence showing the error of such settlement.

Therefore, the question for our consideration is, whether the evidence, accounts and papers submitted to the comptroller, on the motion for a revision, which he was obliged under § 20 of the act to return to the certiorari, shows an error in his original determination as to the amount of the capital stock of relator employed within the state.

The relator in its return estimated the amount of its capital stock employed within the state at $153,500. The comptroller, however, settled it at $419,965, on which the tax was $629.98.

The relator made the following report:

“ Capital employed within the state. Amount thereof in real estate (poles and wires)........... $175,000 00
Value of shares of stock ...................... 30 per cent.
Dividend on stock ........................... None.
Average monthly bank balance................ $14,714 51
Amount paid for rent within the state........... $52,997 77
Amount paid for salaries, expenses, etc., within the
state .............. .$327,254 76.”

It also appears that the amount of its capital stock was $10,-000,000, divided into 100,000 shares of $100 each, and that 86,000 shares, worth $30 per hare, had on November 1, 1890, been issued. The total wire and pole mileage in the United States in November, 1890, was 79,489, of which 7,378, or nearly one-tenth, was in the state of New York. The company held stock in subsidiary telegraph companies, the par value of which is $5,649,020.

The questions involved have-been so often passed upon and are so well settled that an extended discussion will not be required.

It is settled'that the provisions of chapter 542, Laws of 1880, and of the acts amendatory thereof and supplemental thereto, are not in conflict with either the state or federal constitutions. People v. Home Ins. Co., 92 N. Y., 328; People v. Home Ins. Co., 134 U. S., 594; People v. Gold & Stock Tel. Co., 98 N. Y., 67; People v. Horn Silver Mining Co., 105 id., 76; 6 St. Rep., 495. And this is the case although an assessment under the act may result in an unequal or double taxation. People v. Home Ins. Co., supra ; People ex rel. Penn. R. R. Co. v. Wemple, 51 St. Rep., 702-704.

The opinion in the case last cited, after referring -with approval to the doctrine stated in Peoples. Home Ins. Co., supra, contains the following language : “ The tax, when imposed on a domestic corporation, is a tax on its corporate franchises ; when imposed on a foreign corporation, is a tax on its business ; a distinction based on the fact that corporate franchises are only taxable within the jurisdiction which creates them, and where alone they can be said to have a situs."

Hence, if a portion of the capital stock of relator, employed within the state, was real property, subject to local taxation, the comptroller, in estimating, under the provisions of the act of 1880, the amount of relator’s capital stock employed within the state, was not compelled to deduct therefrom the real estate so locally taxed. In People v. Home Ins. Co., supra, a portion of the capital stock of the company was invested in bonds of the United States, not taxable; but it was held that such bonds could be properly considered in determining the amount of capital stock of the company. So, in the case under consideration, the comptroller could, to determine the amount of the relator’s property employed in the state, take into consideration its real estate, though subject to local taxation.

The act of the comptroller in imposing the tax in qusstion was not prohibited by the enactments as to interstate commerce. The case of the People ex rel. Penn. R. R. Co. v. Wemple, 51 St. Rep., 702, referred to by the relator, does not apply. In’ that case the relator, a railroad company whose lines extended over Pennsylvania, New Jersey and other localities, had no property in this state except that used solely for interstate commerce. It carried on no business within the state except that of interstate commerce. If, besides landing its passengers and freight in New York city, that railroad had extended its lines into the state of New York, or elsewhere, the case would have been mtire like the one under consideration.

In the opinion in the case cited the following language occurs: “ There would seem to be no question that domestic corporations engaged in both state and interstate commerce, may lawfully be subjected by the state to a franchise tax, measured by its whole capital or business, or in any other way in the discretion of the legislature, without taking notice of the part of its business arising from interstate commerce, providing no hostile discrimination is made against such part. Nor would there seem to be any valid reason why a foreign corporation, engaged both in the business of state and interstate transportation in this state, should not be subject to a taxation in common with domestic corporations.”

Therefore the comptroller could properly impose the tax in question upon relator although it was engaged in both state and interstate commerce.

The act of the comptroller in imposing the tax in question on relator not being prohibited by the state or federal constitutions, the only question remaining to be considered is whether there was an error in determining the amount of capital employed by relator within the state.

The learned counsel for relator contends that the comptroller erred in considering the amount of relator’s average monthly bank balances, the gross amount paid for salaries, wages, labor, etc., and the total amount paid for rent. He suggests that this-plan wns-first adopted and erroneously approved by this court in People ex rel. Am. C. & D. Co. v. Wemple, 60 Hun, 225; 38 St. Rep. 17. But the determination of this court in the case cited was sustained by the court of appeals. 129N.Y., 558-565, 566; 42-St. Rep. 400. It is therefore unnecessary to consider the argument of the learned counsel in support of his said contention. See, also, People ex rel. S. C. O. Co. v. Wemple, 131 N. Y., 68 ; 42 St. Rep., 632.

The authorities last above cited hold that the amount of capital that any corporation employs within the state is generally a question of fact to be determined by the comptroller. Also, as above suggested, that the determination of the comptroller will not be disturbed unless clearly shown to be erroneous. As we have seen, it was for the relator on its motion for a revision to produce evidence showing .that the comptroller erred in determining the amount of its capital stock employed in the state to be $419,965. After a careful examination of the papers we are unable to hold that the relator succeeded in showing any such error.

It does not appear by what method of computation the sum of $419,965 was settled upon as the amount of relator’s capital stock used within the state. But it was shown that 86,000 shares of its stock had been issued, worth $30 per share; that the wire and pole mileage of the company in this state was 7378 miles; amount-invested in poles and wire in the state $175,000; its monthly bank balance, $14,714.51; amount paid for rent, $52,997.77; for salaries, expenses, $327,254.76. The company also holds stocks in subsidiary telegraph companies of the par value of $5,649,070. The relator was a New York corporation with its principal place of business in that state. From that place of business its operations were conducted. The comptroller had all these facts before him in determining upon $419,965 as the amount of relator’s capital stock employed in the state. We are unable to say that on the application for a revision it was made to appear that the comptroller erred in his conclusions on the question submitted to him. The comptroller having .the facts above set out before him, as held in People ex rel. A. C. & D. Co. v. Wemple, 129 N. Y., 566; 42 St. Rep., 400, there was sufficient evidence upon which he could act in finding a basis for assessment.

On the application for revision the burden was on the relator to show the comptroller’s error, if any. We think it failed to do so, and hence that the decision of the comptroller should be confirmed, with costs.

Mayham, P. J., and Herriok, J., concur.


text:
    The People ex rel. The United Lines Telegraph Co. v. Frank Campbell, Comptroller. The People ex rel. The French Atlantic Cable Co. v. Frank Campbell, Comptroller. The People ex rel. The Commercial Cable Co. v. Frank Campbell, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Certioraris to review the determination of the comptroller of the state in each case declining to set aside or reduce an assessment made against the respective relators.

      R. S. Guernsey, for relators; S. W. Rosendale, att’y gen. (John W. Hogan, deputy att’y gen., of counsel), for resp’t.
   Putnam, J.

It being represented to us by counsel for the respective parties that the facts in the above cases are substantially the same as in the People ex rel. Postal Telegraph Cable Company v. Campbell, as comptroller, for the reasons stated in the opinion written in that case the decision in each of the above cases should be confirmed, with costs.

Mayham, P. J., and Herrick, J., concur.