author: BARRETT, J. VAN BRUNT, P. J., and RUMSEY, J.

text:
    Lillie J. Earle, Resp't, v. Gorham Manufacturing Company et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 13, 1896.)
    1,- Chattel mortgage—Default.
    The rule that, where a mortgage is payable in installments, the mortgagor cannot redeem without paying the whole debt, is inapplieable, where the right to foreclose is, by the express terms of the mortgage, limited to default in the payment of the whole debt.
    2. Waiver— Default.
    A tender of the whole amount due after forfeiture is insufficient to create a waiver, but for this purpose there must he an acceptance by the mortgagee, who may either insist upon his forfeiture and leave the mortgagor to his bill to redeem, or he may waive his right of forfeiture, and he does so upon acceptance of the tender.
    3. Same.
    Where the forfeiture results from the nonpayment of an installment, the mortgagor cannot redeem without a tender of the whole amount of the mortgage debt. ‘ 1
    4. Same.
    But, to affect a waiver of the forfeiture and the revesting of the original status under the mortgage, there need only be a tender an<$ acceptance of the unpaid installment.
    6. Injunction—Remedy at law.
    Where a mortgagee has taken possession of the mortgage chattels, in violation of the covenant for peaceable possession and quiet enjoyment, an injunction to compel restoration will lie where the remedy at law is inadequate.
    6. Execution—Sale—Presence of property.
    The law in regard to property sold under execution is sufficiently complied with where, on a sale, in the rotunda or lobby of a hotel,part of the goods was on a table in an adjoining room, and the remainder in the storeroom down stairs, both of which rooms are unlocked and the property open to the inspection of bidders. "
    7. Injunction—Damages—Interest,
    Where, in an action for an injunction to obtain possession of' chattels wrongfully taken by defendant, the value of the use cannot he recovered because it has not been proved, the damage suffered by the detention of the property is measured by the interest of its value.
    8.. Appeal—Judgment.
    Where the appeal from a judgment, rendered upon a decision which does not state separately the facts found, the appellate court may grant to the plaintiff the judgment which the facts, warrant.
    9. Same.
    Where the facts found warranted judgment in the plaintiff’s favor for the interest damages, the appellate court necessarily, in aid of the power to grant such a judgment, has. the same authority as the-trial court to direct an amendment, increasing the amount for which judgment is demanded to a sum equal to such interest damages. " ¡
    Defendant appeals from a judgment in favor of plaintiff; and' plaintiff appeals from the refusal to award damages in addition to the injunction.
    In and prior to August, 1893, Ferdinand P. Earle was lessee of the Hotel New Netherland and the Hotel Hormandie, in the city of Hew York. Prior to August 3, 1893, he bought certain silverware of the defendant Gorham Manufacturing Company, gave his notes therefor, amounting to over $35,000, and on said date executed a mortgage on said silverware as security for their payment. Thereafter more silverware was purchased hy Mr. Earle from the defendant company, to the amount of about $3,500. In January, 1894, an agreement was entered into by Mr. Earle, the defendant company, and two other corporations, creditors of the former, whereby, among other things, a series of notes was given to replace those then held by the defendant company, and to cover the price of silver subsequently bought and interest accrued. Notes were also given to the other corporations, representing existing indebtedness; and the whole was secured by a mortgage, excuted to the defendant ¡Robinson as trustee, o-f the lease of the Hotel Normandie and all property, of every nature, in said hotel, more particularly set forth in a schedule-annexed. In case of default in the payment of any of the notes, and the continuance thereof for thirty days, authority was given to the mortgagee to sell the mortgaged property, pay all the notes, Avith costs and expenses, and return the overplus, if any, to themorigagor. This. mortgage did not cover the silverware, but there Avas a provision therein “that none of the present security now held by said three corporations, or either of them, is to be changed in any respect; but that this extension of the term of payment is in consideration of the payment of one ($1) dollar, and ihe giving of this mortgage as further collateral security thereto.”" In March, 1894, all Mr. Earle’s right, title, and interest in and to the mortgaged silverware was sold on execution, together with-other property, to the plaintiff. The first of the new notes payable to the defendant company fell due on April 5, 1894. On this date a balance was due thereon, and the company, on April 6th, took possession by a city marshal of all the silverware covered by the mortgage which was then in the Hotel New Nether-land, being $34,bob worth or over. On April 23d, Mr.. Earle-paid the balance due upon the note of April 5th, and it was surrendered to him. There is a conflict of testimony as to what occurred between Mr. Earle and the representative of the companyAvhen this note Avas paid. The former states that the company agreed to relinquish possession of the silverware, Avhich the latter denies. Since this time all notes have been paid to the defendant company as they fell due, the payments amounting to about $14,000. After the payment on April 23d, the attorney for the-defendant company demanded either that Mr. Earle or the plaintiff redeem the silverware by paying in full the debt to the-company, or deliver to the marshal a certain portion thereof, Avhich had been removed from the Hotel Nbav Netherland before he took possession. This was not done, and on Mav 18th a sale of the silverware was advertised for May 26th. On May 23d a temporary injunction order against the sale Avas granted, which Avas continued during the pendency of the action by order made June-J, 1894. The judgment appealed from enjoins the defendants (appellants), their agents or servants, from interfering or inter-meddling with the plaintiff in the possession of the silverware; -covered by the mortgage of August 3, 1893, or selling, assigning, transferring, or incumbering the same, until default in the payment of some one of the notes set forth in the mortgage dated January 2, 1894.
    George M. Pinney, Jr., for app’lts; A. J. Dittenhoefer and David Gerber, for appellee.
   BARRETT, J.

— The defendant comp-any has proceeded throughout upon an erroneous view of its rights. There never was a forfeiture under its silverware mortgage. That mortgage was entirely independent of the ¡¡Normandie mortgage. The principal relation which the latter bore to the former was that it extended the original terms of payment. It did not alter any •of the other provisions or conditions of the silverware mortgage. • On the contrary, it provided that that security was not to- be changed in any respect, and that the extension of the terms of payment granted by the new mortgag was in consideration of the further collateral security which that new mortgage furnished. The new notes specified in the ¡¡Normandie" mortgage were substituted for the old notes specified in the silverware mortgage. The understanding was that the old notes should remain in the company’s possession, but should not be negotiated; and, when all the new notes were paid, the old notes were to be canceled. It will be observed, however, that the new notes aggregated some $3,500 more than the old. This was because the company had delivered additional silverware to the extent in value of about $3,500 between the time when the silverware mortgage was given and the time of the execution of the ¡¡Normandie mortgage, Thus, this additional silverware was not covered by either mortgage, while the silverware actually covered by the original mortgage was charged with the payment of some $3,500 more than the sum with which it had previously been charged. The •defendant company contends that there was a forfeiture under the silverware mortgage the moment the mortgagor failed to pay at maturity any one of the notes given upon the execution of the ¡¡¡Normandie mortgage. It admits that this forfeiture did not result from the breach of any of the terms or conditions of the ¡Normandie mortgage. This admission was compelled by the seventh' condition of the ¡¡Normandie mortgage, which expressly postponed forfeiture thereunder for thirty days after default in the payment of any of the new notes; it being conceded that the note1 upon which the present forfeiture is claimed was fully paid be-" fore the expiration of these thirty days. The hard doctrine which the defendant company invokes is that these thirty days of grace only apply to the forfeiture of the additional collateral security furnished by the new or ¡¡Normandie mortgage. Upon this it is contended that as the security of the old mortgage was not to be changed in any respect, and as the thirty-day clause is not to be found therein, there was a forfeiture thereunder the moment a default occurred in the payment at maturity of any one of the new notes. There is nothing in the original mortgage to justify this contention. It was the clear intention of the parties when the Xormandie mortgage was given ti limit ad interim forfeiture to the additional collateral security thereby furnished. That was deemed sufficient without distorting the original security, or impressing upon it an ad interim f oreclosure clause. ■ If this was not the understanding of the parties, it is difficult to account for the plain and precise provision on this head inserted in the Yormandie mortgage, and the entire absence of any such provision in the silverware mortgage. It may be argued that the parties originally acted upon the theory that the law itself in-grafted such an ad interim forfeiture and foreclosure clause upon the silverware mortgage. The daftsman’s phraseology, however, precludes any such theory or idea. The provision authorizing a sale upon default reads in this wise:

“And the said party of the first part covenants and agrees to and with the party of the second part that, in case default shall ¡be made in the payment of- the sum above mentioned, then,” etc.

To aid the company in effecting an unconscionable forfeiture, we are asked to give these italicized words a most elastic, strained, and unreasonable construction. What is the said sum above mentioned? The clause in which this sum is mentioned reads as follows:

“Upon condition that if the said party of the first part shall and do well and truly pay unto the said party of the second part, their executors, administrators, or assigns, the followiug promissory motes, to wit:

_ —then these presents shall be-void.”

There are several sums here mentioned, and' there is' one total sum. The sum referred to in the “sale” clause is clearly that total sum. The defendant would have us construe the sale clause as though it read “the said sum, or any of the said sums, above mentioned.” We cannot insert these additional words in aid of a forfeiture. Yor does the context admit of any such amplification. The words “the said sum above mentioned” are again used ¡later on in the same “sale” clause. We cannot well give them there a different meaning. Should we give them the same meaning as the defendants ask us to give them when reading the earlier part of the clause, let us see what would result. Under the earlier phrase, construed to read “upon default in the payment of the said sum, or any of the said sums, above mentioned/’ the defendants are authorized to sell and dispose of “the said goods or chattels,”—all of them,—and, out of the money arising therefrom, to retain and pay “the said sum above mentioned” (precisely the same words, it will be observed), and all charges touching the same; rendering the overplus, if any, unto the mortgagor. Now, if the “said sum above mentioned” means any one of the-said sums above mentioned, then it is only the one of such sums-as to which there is a default which can be “retained and paid.” The entire overplus must be “rendered” to the mortgagor. Surely, the parties did not mean that. The defendants scarcely desire a construction which would involve foreclosure and sale to pay an installment, and the loss of the security as to the residue. But, if they did not mean that in the later use of the words, they did hot mean it in the earlier. They cannot mean one thing in the one connection and another thing in the other. “The said sum. above mentioned” was not the sum due on the first unpaid note in the default connection, and the totality of the debt in the sale and payment connection. It is plain that it meant the total sum-in both connections.

But this is not all. The words in question occur again in the quiet and peaceable possession clause. Here it is provided that,, “until default be made in the payment of the said sum of money, the mortgagor is to remain and continue in the quiet and peaceable possession of the said goods and chattels, and the full enjoyment of the same.” There is not a break in the entire condition-from the quotation above unto the end. The covenants as to default and peaceable enjoyment follow the formal condition directly, and are part and parcel-thereof. They must all be read together. So -reading them, the condition is not broken until default is made in the payment of the entire sum specified therein. Thus, it is upon default in the payment of the entire sum, namely, the sum of $35,082.95, therein “above mentioned,” that the title: becomes absolute. It is upon that default, and that alone, that) the right to seize and sell the property becomes absolute; andj it is upon that default, and that alone, that he mortgagor loses^ his right to remain and continue in quiet and peaceable posses-! si on. This construction is in harmony with the condition proper,! and with every one of the sequences which follow. Any other: construction would be incongruous and vacillating, and would) require the court really to reframe the conditions so as to mature, the entire debt upon the payment of any one of the notes. '

The rule that, where a mortgage is payable in installments, the mortgagor cannot redeem without paying the whole debt, is of course, inapplicable. The right to foreclose was, by the express terms of the mortgage, limited to default in the payment of the: whole debt. Thus, the operation which the law might otherwise-have given to the naked condition (as suggested by the learned' referee in Leadbetter v. Leadbetter, 32 St. Rep. 890, and in Bragelman v. Daue, 69 N. Y. 74) is varied by the provisions of the-contract itself. As there was no forfeiture, there was nothing to-redeem. The mortgagee has simply taken possession unlawfully. Indeed, the installment rule has almost invariably been laid down in cases where, by the terms of the mortgage, the right to foreclose is expressly granted upon default in the payment of any part of the debt. Such was the fact in the extreme case Halstead v. Swartz, 46 How. 291.. The condition there was that the plaintiff should pay the notes “as they became due;” but, in case of nonpayment “at the time or times above mentioned,” then the defendant was authorized to seize and sell. So, in Leadbetter v. Leadbetter, 125 N. Y. 292; 34 St. Rep. 929, affirming, 32 St. Rep. 890, the condition was, as said by O’Brien, J., “that the defendant should pay the notes as they became due, and that, in case of default in the payment of the notes or any of them when due,” then the said sum of $3,000 (the entire debt) should become due instantly, and the mortgagee or his assigns should have the right to take possession, etc. It follows that, whether the default clause in the silverware mortgage or that of the Hormandie mortgage governs, there was no forfeiture, and the defendants have acted unjustifiably throughout.

But, even if there had been a forfeiture, it was distinctly waived. This is not an action to redeem the property. Such an action is to relieve from a forfeiture. There the mortgagor must pay or tender the whole debt before bill filed. This action, however, proceeds upon the theory that there is no forfeiture to be relieved from, and consequently nothing to be redeemed. The claim is that, by the waiver, forfeiture, if any, was completely wiped out; that it then became nonexistent; that, consequently, the original status was restored; and that now the rights of the parties are precisely the same as though the forfeiture had never ¡been. The question which runs through the cases on this head is whether a tender of the whole amount due after forfeiture is sufficicntinlaw to effect such a waiver. The current of authority favors the conclusion that such a tender is insufficient to create a waiver. It is, undoubtedly, sufficient upon a bill to redeem. But, to create a waiver, there must be an acceptance by the mortgagee. The latter is not bound to accept the amount due, and restore the property. He may insist upon his forfeiture, and leave the mortgagor to his bill to redeem. On the other hand, he may waive his right of forfeiture, and he does so upon acceptance of the tender. Hutchings v. Munger, 41 N. Y. 158; Van Loan v. Willis, 13 Daly, 281; Patchin v. Pierce, 12 Wend. 61; O’Rourke v. Hadcock, 114 N. Y. 550; 24 St. Rep. 511. Where the forfeiture results from the nonpayment of an installment, the mortgagor cannot redeem without a tender of the whole amount of the mortgage debt. A tender of the unpaid installment is insufficient either for redemption or to effect a waier. To redeem, there must be a tender of the whole debt. To effect a revesting of the title at law, there must be a tender and acceptance of the whole debt. But, to effect a waiver of the forfeiture and the revesting ,of the original status under the mortgage, there need only be a tender and acceptance of the unpaid installment. The only case we have been, able to find which militates against the latter doctrine is Patchin v. Pierce, 2 Wend. 61. There, however, the court was dealing with the title at law. What the court really held was that the acceptance of a part, of the money secured by the mortgage does not operate to reinvest the title in the mortgagor, so as to enable him to recover at law. It was assumed that the waiver of the forfeiture could produce no other result; and Nelson, J., reasoned that, as that particular result did not follow, there was no waiver. The reasoning overlooked the other result which does follow the waiver, namely, the right in equity to a restoration of the original status under the mortgage. This latter view is clearly outlined in the latter cases which Have been cited. Thus, in Hutchings v. Munger, supra, where, even upon a conditional sale, the entire amount of the purchase money had become due and was unpaid, a part payment was held to effect a waiver of the forfeiture. * “This,” said Grover, J., “was an assent by the defendant to the delay, and a waiver of the forfeiture. It was a recognition of the contract as still in force, and of the right of the plaintiff to acquire title to the boat by payment of the residue of the purchase money in the future.” This case was followed in O’Rourke v. Hadcock, supra. Even in the dissenting opinion in the latter case, Bradley, J., conceded, upon the authority of Hutchings v. Munger, that the receipt of part payment operated as a waiver of the forfeiture so far as to permit the defendant to complete his payments, and perfect title to the boat. The rule is broadly stated in Jones on Chattel Mortgages, that “acceptance of part payment of the mortgage debt after the expiration of the time allowed by statute for redemption is a waiver of the forfeiture;” citing, in support of the rule, Winchester v. Ball, 54 Me. 558; Flanders v. Barstow, 18 Me. 357, and Thompson v. Moore, 36 Me. 47. Our conclusion is that, while the acceptance by the- mortgagee of an unpaid installment does not of itself effect the vesting of an absolute legal title in the mortgagor, it does effect a waiver of the forfeiture, and is a recognition of the mortgage, with all its terms and conditions, as still in force. The forfeiture is obliterated, and the original status restored. The legal, but defeasible, title, is continued in the motgagee, and the right to quiet and peaceable possession is continued in the mortgagor; and the latter right can only be enforced in equity.

The plaintiff, however, does not rely wholly upon the legal effect of the defendants’ acceptance of payment of the only note as to which there was a claim of default. When that note was paid, the defendants distinctly recognized the plaintiff’s equity. The court below would have been quite justified in specially finding (had the decision been made in the old way) that Mr. Robinson then acceded to Mr. Earle’s position, which was that he supposed, of course, he could now take possession of the silverware; that Mr. Robinson said that it was all right; and that, as he (Earle) had paid the note, there was no objection to his taking the silver away. This was further recognized when the the defendants accepted payment of the second note. It appeared, too, that every note which, had matured prior to the trial had been promptly paid. These amounted in all to more than one-third of the entire purchase price. A more complete waiver, both at law and in fact, it would be difficult to conceive of.

In the view which we have last taken of this case, there can be no doubt of the plaintiff’s right to appeal to a court of equity. She had, in fact, no other right. But even in our original view, that there never was a forfeiture, there was still an undoubted right to equitable belief. What the plaintiff seeks is not a specific performance of a contract for the sale of chattels, but a specific performance of the covenant for peaceable possession and quiet enjoyment. Here the contract of sale was executed, and the goods were delivered. The mortgage was given to secure to the mortgagee the purchase price of the goods, and the covenant was given to secure to the mortgagor continuous possession until default. Damages for the breach of such a covenant would be a most incomplete and unsatisfactoiy remedy. The measure of damages would be the value of the right of possession until forfeiture by breach of the condition of the mortgage^ and the value of the property after payment of the mortgage debt. Jones, Chat. Mortg. § 437, and cases cited. It would be practically impossible for the plaintiff here to prove the value of the right of possession. That would involve the value of the use of the property for hotel purposes. The deprivation of that special use goes to the very root of the transaction. The property -was purchased and designed with reference to that special use in a new and important hotel establishment. The particular hotel for which it was purchased has been lost to the vendor by other causes, but the use in other hotel directions is equally essential. The silverware was especially adapted to hotel purposes. It was marked in two or three different ways. Part of it was marked “Hotel New Netherland,” part with an initial “H,” and part with a monogram or coat of aims. There were also designs “gotten up expressly” for Mr. Earle’s use.

Hor would replevin afford an adequate remedy. The defendant could frustrate the possessory power of this remedy by the simple process of rebonding. The effect would be to keep the plaintiff out of the possessory use pending the litigation. Meanwhile the property might be sold. In the end, whether the property was sold or not, the plaintiff would be face to face with the original problem, namely, how to prove the value of the right of possession. He might recover the property in specie, or, if it had been sold, its value. But still he would be without adequate redress for the detention and for the loss of his possessory right. The breach of such a covenant might be far-reaching. If extended to the furniture, carpets, linen, glass, and chinaware of the hotel establishment, it would almost certainly work downright yuin. Even the sudden deprivation of any one of the various properties which make up the essential plant of such an establishment would jeopardize the entire business. It is clear that the case for equitable relief is, upon the special facts, brought within the principles stated in Cushman v. Jewelry Co., 76 N. Y. 369; Johnson v. Brooks, 93 id 343; Bennett v. Wright, 77 Hun, 331; 60 St. Rep. 63; Ford v. Ransom, 8 Abb. Prac. (N. S.) 416; and Sickels v. Combs, 10 Misc. Rep. 552; 65 St. Rep. 260.

There is, however, still another consideration, which amply supjoorts the equitable remedy. The covenant for quiet and peaceable possession until default was a continuing covenant. There is a daily breach while the defendants keep the plaintiff out of possession. This would lead to a multiplicity of suits, to prevent which a court of equity may properly exercise its jurisdiction. The governing principle is the same as where a lessee covenants to occupy demised premises for a particular purpose, and none other. There an injunction lies to restrain a deviation. Steward v. Winters, 4 Sandf. Ch. 587. In the latter case the vice chancellor said it was unnecessary for the complainant to establish irreparable injury, “or on a continuing covenant” even substantial injury. Then, too, equity should act reciprocally. It protects the mortgagee’s rights, for it will not permit the mortgagor to sell, and place beyond the reach of the mortgagee, chattels covered by the mortgage. It will equally protect the mortgagor’s rights. It will not permit the mortgagee to deprive him of the continuous use pending payment in due course, upon which the whole transaction hinged. !

The only other point made by the appellants is that the plaintiff failed to secure title to the sheriff’s sale, for the reason that the silverware was not then actually present and exposed to the bidder’s view. The property was sold in the rotunda; or lobby, of the hotel. A large part of the silverware was in an adjoining room, opening out of the rotunda. It was exposed upon a large table, and the door of .the room was not closed. The property was some twenty feet away. Some of it was in the storeroom downstairs, a room which was kept locked only at night. There was, under the circumstances, a sufficient compliance with the law which requires property sold under execution to be open to the inspection of bidders. It would have been impracticable to displace all the furniture and property in the hotel, and pile it up in the rotunda. The rooms were open to the public, and any one could have examined the property. The sale was valid, unon the principle enunciated in Tifft v. Barton, 4 Denio, 171, and Bank v. Spencer, 20 N. J. Eq. 159. It may be added that the defendant in the execution was present at the sale, and made no objection. Since then he has fully recognized the plaintiff’s title, and has acted for her in her relations to the property.

The remaining question is upon the plaintiff’s appeal. The learned trial judge refused to grant the plaintiff any compensation for the deprivation of her possessory right. In this, we think, ■he erred. It is true that there was no evidence of the value of the. use of the silverware. In the nature of things, there could he no such evidence. Indeed, the difficulty of proving the value of possessions is, as we have seen, one of the reasons why equity affords relief. We think, however, that there was still a measure of compensation which should have been awarded to the plaintiff. This was in the nature of a possessory action.' The damages which might have been awarded on replevin are therefore appropriate here. It is true that the judgment below was not( like a replevin judgment) in the alternative for the return of the property, or its value if not returned. The judgment here is limited to the return of the property.. Such is the effect of the mandatory injunction. If, however, the value of the property sufficiently appears in the record, there can be no difficulty in awarding interest upon this value in lieu of damages. The rule is that, if damages by way of compensation for use are recovered, there can be no recovery of interest. Sedg. Dam. § 538. But where the value of the use cannot he recovered, because it has not been proved, the damage suffered by the detention of the property is measured by the interest on its value. “The presumption,” says Mr. Sedgwick, “is that damages for detention are to be measured,” Tor which proposition he cites Indemnity Co. v. Flynn, 55 N. Y. 653. It was distinctly held in this case that, in the absence of any proof that the damages are more or less than the interest on the value, tlié presumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use. This rule is especially applicable to a case like the present, where the party wronged is actually paying interest to the wrongdoer upon the notes which represent the value of the property. lie is actually paying this interest (at 3 and 4 per ¡cent.) during the entire period of the wrongful deprivation of the use. Thus, the wrongdoer keeps both possession and interest, while the party wronged is deprived of both,

The question, then, is one of fact: Does the case show the ¡value of the property, and, if so, what value? We agree with the 'defendants that the true value of the property when taken by them was not its original purchase price. But that original purchase price is an element for consideration in connection with the natural depreciation from use. The purchase price of the property covered by the mortgage was $35,082.95. But, as we have seen, some $3,500 worth of additional silverware was subsequently added thereto. The new notes covered this additional $3¿50Ó, together with interest upon the original $35,082.95. The grand total was $39,483.13, and for this latter sum the new notes were given. The defendants thus took property the purchase price of vdiich aggregated some $38,500. In their answer, the defendants admit that they took possession of all the goods “covered by and included in” the chattel mortgage, “save .and excepting certain of said goods and chattels, of the value of $1,083.58 or thereabouts,” which they claim were missing. There was no claim in the answer that any other goods were missing. The answer was verified by the defendant Robinson. This sworn answer was in precise accord with a previous demand for missing goods of the value of $1,083.58. In fact, the defendant company’s attorney wrote to Hr. Earle on the 17th of April, 1894, inclosing an inventory of the missing goods, “valued at $1,083.-58,” and demanded their return. It would seem, therefore, that the purchase price of the good actually taken must have been some $37,500. One-half of it was unused, and therefore nearly as good as new. The depreciation of the other one-half was not great, for Mr. Earle testified without contradiction that such silverware with ordinary use would last fifteen years. Mr. Robinson himself testified that the defendants “got back about $34,000-worth of silverware, according to the inventoiy.” This testimony is quite conclusive. There is not a suggestion that Mr. Robinson here referred to the original purchase price of the property. It is true that he insisted (notwithstanding the suggestion of his counsel that he was in error, as he clearly was) that the value of the missing silverware was $5,000, and that the total silverware sold to Hr. Earle was about $39,000. Upon this variation from the real fact, as such fact was stated in his answer and in the demand to which reference has been made, he may have predicated his estimate of the value of the property taken; that is, he may have mentally deducted this $5,000 form the $39,000, and put the difference as the “worth” of the silverware which the defendants took. That, however, is but a possibility, and we see no reason for speculating away the probative force of the wrongdoer’s evidential admission. Whatever may have been his process of reasoning, the fact remains that he testified-— certainly against interest—that the defendant got back about $34,000 worth of silverware..” They, undoubtedly, got back silverware the purchase price of which was from $37,500 to $38,-000. Thus, the defendants themselves fixed the measure of depreciation,—a measure which is entirely consistent with the non-use -of one-half of the property, and the slight use of the remainder. The conclusion that Mr. Robinson referred to actual value, not mere purchase price, is accentuated by the context. He speaks of value in the answer when referring to the missing goods. This is repeated at the foot of the demand in these .words: “List of missing property valued at $1,083.58.” And in his testimony he says: “I know the whole value of the silverware we did not get back was about $5,000.”

It is entirely reasonable and consistent, therefore, to place the value of the property taken by the defendants at the sum of $34,-000. This is probably less than its real value, but it is, at least, a fixed sum of which the defendants cannot well complain. The judgment should therefore be modified by allowing the plaintiff interest upon the sum of $34,000 from April 6, 1894, which was the date of the seizure. As the judgment was not in the alternative, and as interest will not conseciuently run upon the ascertained value from the date of the judgment, such interest should he allowed as damages down to the time of the actual return of the property. We are not informed whether the 'property was actually returned upon the entry of the judgment appealed from, or whether the execution of that judgmnt was stayed upon this appeal. If the property was returned, then the interest should he allowed down to the trial. If it has been retained pending this appeal, it should be allowed down to the date of our judgment,, The amount can he liquidated in accordance with the facts upon the settlement of the order or judgment upon the decision of this appeal. The prayer for judgment will he amended to effect this-purpose. To sustain a just recovery of damages in excess of a lesser amount inadvertently demanded in the complaint, the-court, on appeal, may direct an amendment. Schultz v. Railroad Co., 89 N. Y. 247. But we may act in this regard as the trial court could have acted. This appeal is from a judgment rendered upon a decision which does not state separately the facts found. In such cases the appellate court may grant to the plaintiff the judgment which the facts warrant. Code Civ. Proc. § 1022. We thus act upon the record with substantially the same effect as-' the trial court. Finding, as we do, that the facts warrant a judgment in the plaintiff’s favor for the interest damages, we necessarily, in aid of the power to grant such a judgment, have the same authority as the trial court to direct an amendment increasing the amount for which judgment is demanded to a sum equal to such damages; and there can he no doubt of the authority of the trial court. Knapp v. Roche, 62 N. Y. 614.

The judgment appealed from by the defendants should he affirmed, with costs. The judgment so far as appealed from by the plaintiff should he modified by granting her the additional relief indicated in this opinion.

O’BRIEN and INGRAHAM, JJ., concur.

VAN BRUNT, P. J., and RUMSEY, J.

We concur in the affirmance of the judgment on the defendant’s appeal. .We dissent from the modification on the plaintiff’s appeal.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    In the Matter of the Buffalo, New York and Erie Railroad Company.
    (Supreme Court, Erie Special Term.)
    1. COBFOBATIONS—VOTING.
    The legislature vests the power to validate, ratify and confirm the purchase of stock in another corporation engaged in a similar business, and to confer upon the purchaser all the rights, privileges and powers of an individual owner of stock.
    2. Samis,
    Section 40, chapter 688 of 1862, legalizes a prior purchase of stock by a corporation, notwith.standing the existence of a statute declaring such acquisition unlawful, and authorizes its voting suck-stock.

      Adelbert Moot and George F. Brownell, for petitioner, United States Trust Co.; E. G. Perkins, for resp’ts.
   GREEN, J.

From 1883 to 1895 there was no election of directors of the Buffalo, New York & Erie Publishing Company. Tn 1895 a notice was duly published of a meeting of stockholders to elect such directors. This notice bears date August 27, 1895, and appoints a stockholders’ meeting September 17, 1895. At the time and place stated, George F. Brownell, as attorney and agent of the United States Trust Company of New York, presented the proxy thereof, duly executed, and offered his vote upon 5,759 shares of the capital stock of said Buffalo, New York Erie Railroad Company. This vote was first offered upon various propositions that came before the meeting before the polls were declared open for the election of directors, but it was refused in each instance by the inspectors acting at the meeting. The •ground of challenge was that the stock which Mr. Brownell •offered to vote upon was the property of the New York, Lake Erie & Western Railroad Company. Mr. Brownell then produced the books of the Buffalo, New York & Erie Railroad, and showed therefrom that the stock upon which he offered to vote liad been held by said United States Trust Company of New York for more than ten days preceding the election; and he also proved by affidavit, as required by law, that said trustee was the •owner of said stock, as trustee for the railroad company. In addition.to this he produced an instrument duly executed by the New York, Lake Erie & Western Railroad Company and its receivers, and filed a duplicate copy thereof with the inspectors, by which instrument it appears that the New York, Lake Erie & Western Railroad Company acknowledges the right of said United States Trust Company of New York to vote at said election upon said shares of stock. The duplicate copy filed with the inspectors did not contain the signature of one receiver, but this is not important, because the other original does contain the •signatures of all the receivers, although the signature of Mr. McCullough was inadvertently omitted from the copy filed. The inspectors still refused to receive the vote upon such stock, and these proceedings were instituted.

The respondents make answer herein, alleging that they were justified in refusing the vote upon the stock in question, as that stock was the subject of litigation in an action in this court wherein Samuel W. Milbank and others were plaintiffs, and the New York, Lake Erie & Western Railroad Company and others were defendants, and that a judgment was rendered therein in October, 1882 (64 How. Prac. 20), among other things, enjoining and re•straining the said last-named railroad company and its trustees -and agents from voting upon those identical shares of stock, upon the ground that it was against public policy, and that, whether the railroad company or its trustee now holds the stock, that judgment is still in force, and precludes either from voting upon those ■shares. If that prohibition is still in force, it is binding as well upon this petitioner, the trust company, as upon the ralroad company.

It is not, and cannot be, denied that the legislature possesses the power to vlidate, ratify, and confirm the purchase of stock in question, and to confer upon the purchaser all the rights, privileges, and powers of an individual owner of stock. It will suffice to refer to the following, among numerous authorities upon this proposition: Gross v. Mortgage Co., 108 U. S. 487; Id., 93 Ill. 493; 1 Mor. Priv. Corp. § 20; 2 id. § 651. The question for determination is whether the legislature has exercised such power. The answer to this depends upon the construction, operation, and effect to be given to chapter 688, section 40, Laws 1892. Py that act, “any stock corporation may purchase, acquire, hold and dispose of the stocks, bonds, etc., of any corporation, if the corporation whose stock is so purchased, acquired, held or disposed of, is engaged in business similar to that of such stock corporation. When any such corporation shall be a stockholder in and other corporation, as herein provided, its president or other officers shall be eligible to the office of director of such corporation the same as if they were individual stockholders therein, and the corporation holding such stock shall possess and exercise in respect thereof, all the rights, powers and privileges of individual owners or holders of such stock.” It is claimed that this provision must be construed to apply only to purchase of stock thereafter to be made, and not to stock theretofore acquired. The ground of the decision in the Milbank Case, 64 How. Prac. 20, was, not that the purchase of the stock was expressly prohibited by any statute •applicable to the Erie Company, and therefore an illegal or unlawful transaction, but that it was not necessary to the exercise of its powers, and was therefore ultra vires; that although the purchase was beyond, or not Within, its corporate power, yet its title to the stock, and its right to receive the profits and dividends, could not be question,—at least, by the vendor corporation. Put it vras also held that the vendor corporation could properly invoke the doctrine of ultra vires, as against its claim to vote upon the stock, or to, have any voice in the control or management of the coip oration, and thus deny to it all the rights, powers, and privileges of an individual stockholder. And it was also observed by the court that as the Hew York, Lake Erie & Western Company was organized under chapter 140, Laws 1850, it is now bound by section 8 of that statute, prohibiting purchases of stock in other corporations. That being so, I am unable to perceive why this purchase of stock, although it was not taken directly fronj the Buffalo, Hew York & Erie Company, but was purchased on the foreclosure sale of the Erie’s property, was not within this express prohibition of the statute making it unlawful for any such company to use any of its funds in the purchase of' any stock in other corporations. The company was prohibited from using its funds in this manner, and this prohibition would extend to a purchase on a judicial sale of the property of a stockholder, be he an individual or a corporation. Surely, in view of this prohibition, it could not be maintained that a purchase from a stockholder, and not from the company itself, would be legal. Still, it seems clear that, the vendor corporation having transferred the stock or property, it could not question the vendee’s right to hold it, even though it might defeat an action to enforce the contract to pay dividends. However that may be, and whether the stock was purchased in violation of an express prohibition of the statute, or was simply a transaction in excess of corporate powers, the result is the same. The contract being executed by the transfer of the stock, it would not be revoked or annulled, and the stock be recovered, though the right to vote upon it did not pass. Judge Haight based his decision upon the general statute prohibiting corporations from exercising any corporate powers not necessary to the powers enumerated, and held that the purchase was ultra vires. This provision is merely declaratory of the common law. The right to vote on the stock was denied on grounds of public policy. For the reasons stated, I think that the decision could also have been properly placed on the ground that the purchase of- the stock on the foreclosure was in violation of the act of 1850, chapter 140, section 8, under which the New York, Lake Erie & Western Company was organized, and consequently it could not be allpwed the privilege to vote. 1

Let us assume, then, that this company’s charter (act 1850) applied to the purchase of this very stock, and declared it unlawful. Now, this statute was repealed in 1892, while this company was still the owner and holder of this stock, and consequently there remained no express statutory .prohibition against the use of its-funds in the purchase of stock of other corporations. And not only was such prohibition repealed, but an affirmative statute was enacted, authorizing any- stock corporation to hold such stock, and' conferring all the rights, powers, and privileges of an individual stockholder. From that time it became lawful to hold such stock,, and to vote upon it. The act of purchase became ratified, confirmed and validated, and the disability to hold such stock was-removed. The rule against construing a statute to operate retroactively has no application. The legal, absolute, indisputable right and power to hold such stock in the future is given by the act of 1892. At the instant of time when the statute was passed, the-holding became legalized, although it was purchased in violation of a former statute, and all the rights, powers and privileges of a stockholder became vested in the company. The prohibitory, statute being repealed, and a new, affirmative, enabling, remedial* statute being enacted, it necessarily operated on the c.ondition of things existing at that time. There is now no statute prohibiting the company from holding this stock, with all the rights and pow"ers incident to or connected with it. If the holding of this stock is sanctioned, and the disability of the company to be and exercise all the powers and privileges of a stockholder are removed, it must follow, as the night the day, that the purchase or acquisition of it is also ratified and confirmed. “A statute is not retrospective, in the -sense under consideration, because a part of the requisites for its action is drawn from a time antecedent to its passing.” See End. Interp. St., §§ 280, 281. In view of the repeal of the prohibitory statute, and this enabling act, how can it be maintained that there is any principle of public policy against this company exercising the rights of a stockholder? The public policy of the state was indicated by the act of 1892, as it was indicated by the act repealed. It would be presumptions in the court to say that it is contrary to public policy for a corporation now to hold stock previously purchased, and to be a stockholder in another corporation. The statutes of the state are conclusive upon the courts as to questions of public policy. Since the statute is repealed, what law now governs the holding of the stock? Where is now the law preventing this company from being a stockholder in respect to this stock? Why should the court draw a distinction between stock acquired and held previous to the statute, and that acquired after, when the statute makes none? Is there any foundation in reason or principle for such a distinction? Is there any judicial reason for holding that one corporation may not he a stockholder in another, in respect to stock theretofore acquired? If-such a distinction should he made upon any supposed ground of public policy, it was for the legislature to make it. When the legislature has reversed its public policy, and declared an inconsistent one, the judiciary must follow and obey. The question is, not as to the particular time of acquisition of the stock, but whether or not there now exists any statute, rule of law, o-r principle of public policy that forbids one corporation from being, and exercising all the rights of, a stockholder in another? There is none. Upon what rule or principle of law, therefore, is this company to he deprived of exercising the rights «of a stockholder? Hot upon the doctrine of ultra vires, surely; for the legislature has conferred the power to be a stockholder, with all the rights thereto annexed, and there is no restriction in respect to stock theretofore acquired. The right to hold stock in other companies is declared. And, pray, what is “public policy” ? It is that principle of law which holds that no one can lawfully do that which has a tendency to be injurious to the public, or against the public good, which may be termed the policy of the law, or public policy, in relation to the administration of the law But "“it is a very unruly horse, and, when once yon get astride of it, you never know where it will carry yon.” It is a variable quantity.

How, the question comes down to this: Could the right to hold this stock and exercise the rights of a stockholder he questioned in any action or proceeding by the people of the state? If not, then no one may dispute it. Upon what grounds? Public policy or ultra vires, or both? The former is out of this question, for the policy of the law is determined by the statute. As to the latter, it would be a legal anomaly to adjudge that the holding of stock pre* viously acquired is ultra vires, but otherwise as to stock subsequently purchased; in other words, that upon the repeal of the act of 1850, prohibiting the purchase, and making it unlawful, the-holding of the stock is now to be governed by the general provision of the Revised Statutes (now embodied in the general corporation law) declaring that no corporation shall possess or exercise any corporate powers not expressly given by law, or not necessary to the-exercise of the powers so given. ‘ Chapter 687, § 10. Now, the-power to hold stock is expressly given. And in Oelbermann v. New York & N. R. Co., 7 Misc. Rep. 353; 58 St. Rep. 462, it was held that no one but the state, or stockholders of the purchasing corporation, could question the corporate power of the company to-be a stockholder, and so it is adjudged in other jurisdictions. The-legislature may waive the public right to object to corporate acts-because they are opposed to the public interests, and, where any act is invalid for want of legislative assent, may waive the objection and ratify such act by a subsequent statute. Richards v. Railroad Co., 44 N. H. 136. .

Now, if there remains any doubt in respect to the applicability of the act of 1892 to the acquisition and holding of this stock, the-law and justice require that in a summary proceeding of this character, to which the people of the state are not a party and cannot be heard, such doubt should be resolved in favor of the claimant.. It is eminently proper, in view of this legislative declaration and-authority, that the corporate power and right of the Lake Erie &' Western Railroad Company to hold this stock, and to exercise all! the rights, powers, and privileges of a stockholder, should be assumed until it is questioned by the sovereign power. When the lawmaking power authorizes a corporation to hold stock in another; and to exercise the rights of a stockholder, it is unseemly in the inspectors of election, and is improper for this court in such a pro-; ceeding, to undertake to decide summarily that the statute has no-application to stock held at the time the statute was passed. Even’ though we may be wrong in our interpretation of the statute, still-the company shows a prima facie right; and, whatever doubts may exist, they should not be resolved against it. The vendor' corporation voluntarily parted with its stock, received the vendee’s money in payment, and created it a stockholder, or attempted to do so. The disability of such corporation to purchase and' hold stock in other companies having been removed, neither law, justice, nor equity requires that the right to vote upon stock theretofore acquired should be denied.

If the consequence of construing this statute to apply to stock theretofore purchased should result in destroying, affecting, or impairing any legal right possessed by the vendor corporation or its minority stockholders, there would exist very good reasons for refusing to give a retroactive operation to its provisions. Where no-such legal rights will be impaired, the presumptiorf against a legislative intention to affect matters and things theretofore arising or occurring is of much less potency. End. Interp. St., § 284, And especially so where the statute is a curative, remedial or enabling-enactment. The rule is not inexorable, but it is largely a question of intention; depending upon the nature or character of the provisions, and the object and purposes sought to be attained. See Cayuga Indians v. State, 99 N. Y. 235. Bow, what legal right in the corporation or in its stockholders will be affected? Judge Haight held that the right of the company to hold this stock, as property purchased and paid for by it, could not be questioned by the vendor corporation, the-contract of transfer having been consummated and executed, but still it had no corporate power to vote upon it. It ought to be assumed, however, that the parties intended to create the company a stockholder, notwithstanding the statutory prohibition. That was the purpose and effect of the transfer. If it be conceded that .the statute validates the holding of this stock, must it not also follow that the company may vote upon it? Is it a warrantable construction that, although the holding of the stock is-legalized, yet the other provisions conferring all the rights, powers and privileges of a stockholder ought not to be applied to it, so asió give the right to vote in the future? May we draw a distinction between the two clauses? In respect to the supposed right of' the vendor corporation or its stockholders, it is an important observation to malee that,, even though it may be assumed that it was not the intention to give the right to vote, yet it was one of the contingencies to which the parties must have looked, in making a contract or transfer of this character, that it may be affected in many ways by subsequent legislation. Of course, that begs the-question whether it was the legislative intent to confer all the-rights and powers of a stockholder, as well as to authorize the holding of the stock. We think that is the effect of the language-of the statute authorizing such corporations to hold stock in other-corporations, etc., and repealing the statute that prohibits them from doing so. This corporation has held this stock for many years, and yet, we infer, no application has been mede by the-Buffalo, Hew York & Erie Company, or any of its stockholders, to the attorney general, for the institution of quo warranto proceedings against the Hew York, Lake Erie & Western Company on account of the exercise of this illegal power. BTor, it seems, has this act of purchase ever been questioned by the state, or by the stockholders of the latter company. If, as we believe, the legislature has legalized the holding of this stock, and declared that such corporations may hold stock in other railroad corporations, it is difficule to hold that the other consequences do not follow. The right to hold stock, and to exercise the rights and powers of a stockholder, is peculiarly a public question, and particularly concerns the state itself, since it is a matter that relates to the exercise of corporate powers or franchises.

It follows that the inspectors should have received the vote of the trust companv, and an order directing them to proceed with puch election, and to receive the vote of the trust company upon the 5,759 shares of stock in question, may be entered, with costa to the petitioner.


author: WILLIAMS, J.

text:
    Arthur Robertson, App'lt, v. Merz Universal Extractor and Construction Company, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Tbial—Inquest—Setting aside.
    Upon setting aside an inquest, taken upon consent to prevent the cause from going to the foot of the calendar, and permitting a trial on the merits, the case should be ordered to the foot of the calendar and not be set down for trial at an early day.
    Appeal from an order setting aside an inquest taken at a trial term, and setting the case down for trial at a future date.
    The case was called January 2, 1896, and, by consent of counsel, was set down for trial January 10, 1896, which was Friday. The case was reached January 10,1896, and called for trial. An application was made by the managing clerk of the defendant’s attorney to postpone the trial, and set the case down for the following week, or place it at the next clerk’s calendar. He produced his affidavit, showing that defendant’s attorney had been obliged to go to Chicago January 7, 1896, to engage in the trial of a case in the United States court, and that he was actually engaged in such trial, and would not reach the city of New York earlier than the following Sunday night or Monday morning. The plaintiff’s counsel was willing that the case he postponed until the following week if it could then be tried, and prevented from going to the foot'of the calendar. The court refused to make such disposition of the case, holding that the application for the postponement was insufficient, under the rules. The trial was then proceeded with. A jury was impaneled, and thereupon the managing clerk of the defendant’s attorney consented that the court, might order a verdict without any evidence being given by the plaintiff, and the verdict was so ordered. A motion was promptly, made to set aside the inquest, restore the case to the calendar,- and! set it down for trial. Upon this motion, it appeared that the defendant’s attorney, on the day before the cause was originally called and set down for trial, Friday, January 10, 1896, in-' structed his managing clerk to keep the whole week commencing January 10, 1896, clear of court engagements, as such attorney must he absent from New York city, and in Chicago, during that week, in the trial of a cause in United States court; that when the case was called, however, such managing clerk consented to' the cause being set down for Friday, January 10, 1896, upon the understanding and assurance (but not of the court) that the case could not- possibly he reached on that day, hut it would then takei its place early in the following week, and would he likely to h»' tried on Monday, January 13, 1896. Having made this disposition of the cause, he at once informed defendant’s attorney what;

      he had done, and the attorney expressed at the time his fear that, through the stringency of the new rules, the case might come up on Friday, and it might he difficult or impossible to have it held until the following Monday. The managing cleric, however, expressed the opinion that setting the case down for Friday would result in its not coming to trial until the following Monday. The attorney, therefore, left for Chicago, and was away when the case came on for trial, on Friday, January 10, 1896. Upon this motion, it also appeared that it was not the intention of the parties that the consent of defendant to a verdict being ordered for plaintiff should in any way interfere with defendant’s motion, to be thereafter made, to set aside the inquest, and have the case set down for trial at a future day. The managing clerk so testified, and plaintiff’s attorney did not deny it. The court made an order February 5, 1896, setting aside the inquest upon the payment of $10 costs, and setting the cause down for trial February 17, 1896, and from this order plaintiff appeals.
    B. F. Einstein, for app’lt; Frank J. Dupignac, for resp’t.
   WILLIAMS, J.

It is very apparent to us that the counsel in this case undertook to evade the rules of the court. It is not disputed that when they agreed to set the cause down for trial on Friday, January 10, 1896, they had no intention of trying the case on that day. The defendant’s counsel intended then to do just what he did do,—go to Chicago, and remain there until Friday had passed. Plaintiff’s counsel apparently did "not intend to try the case on that day either, but asked consent from defendant’s counsel to a direction of a verdict, so as to prevent the case from going to the foot of the calendar. The counsel deliberately and voluntarily put themselves in this position, and then arranged to save the cause from going to the foot of the calendar under the rules. And, to effect their purpose, consent was given that a verdict be ordered, with the understanding that a motion should thereupon be made to set aside the inquest, and have the cause set down for trial at an early day. The special term fell into the error of allowing this arrangement to succeed. This court cannot permit its rules to be so trifled with and evaded. The special term might very properly, under the circumstances, set aside the inquest, and permit a trial of the case on the merits; but, considering the action of counsel, the special term should not have set the case down for trial at an early day.

The order should be modified by striking out the direction that the case be set down for trial February 17, 1896, and inserting a provision that it be ordered to the foot of the calendar; and the order, as so amended, should be affirmed, without costs.

All concur.


author: HARDIN, P. J.

text:
    In the Matter of Proceeding on Petition of Robert Harris et al., for Drainage, etc., Adele L. Hulburt et al., App'lts.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Dba.ina.se—FTecesstty.
    The reversal by the county judge of the determination of the commissioners, upon the ground that it was not necessary for the public health that the lands described in the petition of the land owners upon which the proceeding is instituted should be drained, is conclusive upon that question, and the appellate division has no power to review the facts, as the appeal to it is limited by the terms of the act to questions of law.
    3, Same.
    Where the county court reaches the conclusion that it is not necessary for the public health that the lands described in the petition should be drained,,it ought to order a reversal of the proceedings had.
    3. Same—Repeal.
    The act of 1895 does not, in terms, repeal the statute of 1869 or of 1871.
    4. Same.
    Proceedings under chapter 384 of 1891 ought not to be upheld under the statute of 1895.
    Appeal from an order authorizing the drain.
    A. H. Gardner, T. L. Hulburt and H. G. Pierce, for app’lts; Frank Cummings and Walter S. Hubbell, for resp’ts.
   HARDIN, P. J.

In June, 1891, Robert Harris addressed his petition to the county court of the county of Monroe, which was verified, in which he stated that he was the owner and possessor of certain “swamp, bog and other low and wet lands, situated in the town of Penfield, county of Monroe, and state of New York, and being desirous to drain the same, and who also deem it necessary, in order thereto, that a ditch or ditches, or other channels for the free passage of water, should be opened through lands belonging to your petitioner and another person or persons,” and? that he deemed “it necessary for the public health that such lands should be drained.” The petition further stated that the ditch or ditches or other channels should commence at a certain point,, and run in certain enumerated directions to a certain highway, “of sufficient distance to gain a suitable fall for drainage purposes, following substantially the course of the present ditch.” The petition also stated that it was necessary for a lateral ditch; 'and it stated the names of all persons, “so far as he (the petitioner) has'been able with due diligence, to ascertain the same, and who are the owners of all lands to be affected.” The prayer of the petition was for the appointment of three commissioners, “with all the powers and duties conferred under and by virtue of chapter 888 of the Laws of the State of New York, passed by the legislature in the year 1869, relative to proceedings for the drainage '•of swamp, marsh and other low and wet lands, and for draining iarm lands, and all acts amendatory thereof.” The petition was presented to the county court on the 22nd of June, 1891, and an order was made by that court appointing three commissioners—■ “To hear and determine: First. Whether it is necessary, in order to drain such lands, that a ditch or ditches, or other channels for the free passage of water, should be opened through lands belonging to others than the petitioner. Second. Whether it is necessary for the public health that such lands should be drained. Third. To talte other and further steps with reference thereto as provided for by the general drainage law of this state, * * * as amended by chapter 888 of the Laws of 1869; * * * and the said commissioners are hereby given the full powers and authority conferred upon commissioners by said title of the Revised Statutes and said act of 1869, and various acts amending the same; and that a commission issue to said commissioners, under the seal of this court, for such purposes.”

Subsequently, and in July, 1891, Guy McGowan and five other persons presented a petition containing somewhat similar language to that already quoted from the petition of Harris; and on the 13th of July, 1891, an order was made that the proceedings under the last-named petition “be continued and consolidated as petitioners with the proceeding or petition presented by Robert Harris, of the town of Penfield,” and substituting George W. Clark, as commissioner, in the place of George Salmon, who had resigned. The commissioner's named in that order were authorized to—

“Hear and determine: First. Whether it is necessary, in order to drain such lands, that a ditch or ditches, or other channels for the free passage of water, should be opened through lands belonging to others than the petitioners, Robert Harris, Guy McGowan and others. Second. Whether it is necessary for the public health that such lands should be drained. Third. To take such other and further steps with reference thereto as are provided by the general drainage law of this state (title 16, chap. 8, part 3, of the Revised Statutes, as amended by chapter 888, and the acts amendatory to the said acts of 1869). * * * Fourth. That a commission issue to said commissioners, Smith, Clark and Titus, under the seal of this court, for such purposes.

On the 3rd day of August, at a term of the county court, the papers and proceedings were read, and the parties were heard, and it was ordered “that the above-mentioned order of consolidation in these proceedings be, and the same is hereby, in all respects, confirmed.” That order was entered in the Monroe county clerk’s office on, the 8th of August, 1891. The commissioners took the usual oath of office, and entered upon the discharge of their duties, and viewed tire lands mentioned in the petitions, “and found water standing in considerable quantities” on certain lands mentioned in the report, and their report states, viz.:

“On the 11th day of April, 1892, at which all of said commissioners were present,” as appears by the report, they did “determine that it is necessary, in order to drain the lands described in said petition, that a ditch for the free passage of water shall be opened through lands belonging to others than the petitioners; and we have further determined at such meeting, and do hereby determine; that it is necessary for the public health that such lands should be drained; and we further report that the minutes of the testimony taken by us, and of our proceedings in the said proceedings, are hereto annexed, marked (B.’ ” That report was signed by two of the commissioners, and a minority report was made by Commissioner Clark, dissenting “from so much of the foregoing report as determines that it is necessary for the public health that said lands should be drained.”

And in his dissenting report he further stated:

“I do hereby report, and I do hereby determine, that it is not necessary for the public health that said lands should be drained.”

On the 30th of April, 1892, an appeal was taken to the county .court from the said determination. That appeal seems to have been heard at a term of the, county court in 1895, and a decision and opinion delivered and filed in August, 1895. The learned judge who presided at the-term of the court, among other things, in the course of his decision, said, viz.:

“Upon the whole case, I am unable to find that the drainage of these lands is necessary for the public health.”

That conclusion was followed by the following language:

“A determination may be entered in the minutes of the court that the lands of the petitioner are agricultural lands; that the same are swampy, low, or wet lands; and it is necessary, in order to drain such lands, that a ditch or ditches, or other channels for the free passage of water, should be opened through the lands belonging to the persons other than the petitioners whose names are set forth in the petition in this proceeding.”

It appears that the decision was also followed by an order or judgment which contained the following language:

“After hearing all of the evidence produced on the part of the appellants and respondents, and after due deliberation being had thereon, it is hereby ordered, adjudged and decreed that the lands of the petitioners are agricultural lands, and they are swampy, low, or wet lands; and it is necessary, in order to drain such lands, that a ditch or ditches, or other channels for passage of water, should be opened through the lands belonging to the persons other than the petitioners, whose names are set forth in the petitions in this proceeding.”

In section 1 of chapter 888 of the Layrs of 1869, it was provided that:

“Any person or persons owning or possessing any swamp, bog, meadow or other low or wet lands within this state, who shall be desirous to drain the same, and who shall deem it necessary in order thereto that a ditch or ditches or other channels for the free passage of water should he opened through lands belonging to another person or other persons, and any person or persons who shall deem it necessary for the public health that any such swamp, bog, meadow or other low or wet lands shall be drained, may present a petition duly verified * * *.”

In section 2 it was provided that if the county judge is satisfied that such drainage is necessary he shall appoint three commissioners—

“To hear and determine. First. Whether it is necessary, in order to drain such lands, that a ditch or ditches, or other channels for the free passage of water, should be opened through lands belonging to others. Second. Whether it is necessary for the public health that such lands shall be drained; and to take such other and further steps with reference thereto as are hereinafter povided for. ~

Section 4 of that act provides that parties shall be héard, and that the commissioners shall—

“Proceed by personal view of lands and otherwise to determine .whether it is necessary in order to drain such lands, that a ditch or ditches or other channels for the free passage of water shall be opened through lands belonging to others than the petitioner or petitioners, and also whether it is necessary for the public health that such lands shall be drained.”

In section 5 it is provided, viz.:

“Any party feeling aggrieved by such determination may appeal therefrom to the said county judge by giving written notice of such appeal to said commissioners within ten days after the last publication of said notice.”

That section also provides that the judge shall “proceed to hear said appeal, and to determine the same.”

In section 6 it is provided that if the commissioners shall determine, or the county judge shall determine, “that for the benefit of the public health such ditches, drains or channels should be be opened,” it shall be their duty to cause an accurate survey of all the said lands to be made.

Section 12 provides that the county judge shall hear the proofs and allegations of the commissioners, and that he may dissolve the commission, or may give any directions that the rights of parties or the public interest shall require. That section also provides that:

“An appeal on questions of law arising under this act, may be taken from the decision of any county judge, or county judge and justices of sessions, to the supreme court at any time within thirty days after such decision shall have been made and filed; and the same shall be heard as appeals from an order are heard; cost thereon to be adjudged in the discretion of the court.”

In He Swamp Lands in Town of Chili, 5 Hun, 116, it was held, in proceedings arising under the act of 1869, and the amendment thereof by chapter 803 of the Laws of 1871—

“That the reversal by the county judge of the detemination of the commissioners,- upon the ground that it was not necessary for the public health that the lands described in the petition 'of the landowners upon which this proceeding was instituted should be drained, was conclusive upon that question; this court having no power to review the facts, the appeal to it being limited, by the terms of the act (section 12, Act 1869), to questions of law.”

That case was referred to with approval in Re Ryers, 72 N. Y. 1.

Inasmuch.as the county court reached the conclusion that it was not necessary for the public health that the lands described in the petitiomshould be drained, it would have been in accordance with the authority in the Town of Chili Case to have ordered a reversal of the proceedings, and we are of the opinion that the county court ought to have ordered a reversal of the proceedings had, His error in that respect should lead us to everse the order entered-upon his decision.

Since the proceedings were instituted, in 1891, the people of the state have amended the constitution, and the provision to which we shall refer took effect on the 1st day of January, 1895. In article 1, § 7, of the amended constitution is found the following language:

“General laws may be passed permitting the owners or occupants of agricultural lands ■ to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the hands of others, under proper restrictions, and with just compensation, but no special laws shall be enacted for such purposes.”

_ _ . . Prior to the adoption of that provision of the constitution,' drainage laws were upheld only for the purpose of preserving the pubEe health. In re Ryers, 72 N. Y. 1, and cases there cited. It is to be observed that the provision of the constitution to which we have referred is permissive to the legislature. The words, “general laws may be passed permitting,” etc., contemplate future action by the legislature. Such action was had by the legislature in 1895 as will be seen by an examination of chapter 384 of the Laws of 1895. In the first section of that act a definition is given of the term “drain” and the term “dyke,” and authority is then given in the following language: £'j

“A person owning agricultural- lands within this state may institute proceedings for the drainage of such lands or the protection thereof from overflow, by the construction and maintainance of a drain or dyke, on the lands of another person, or the use of mechanical devices, by presenting a verified petition to the county court of the county in which lands are located * * * setting forth a general description of the lands to be drained or protected, the names and places of residence of the owners of all lands affected by the proceedings, so far as the same can with* reasonable diligence be ascertained, and a prayer for the appointment of three commissioners.”

In the fifth section of that, act it is provided that on the pre*. sentation of the petition the court shall, if there appears to be reasonable ground thereof, appoint three freeholders—

“To hear, and determine the following matters: “First. Whether such, lands shall be drained or protected. Second. Whether it is necéssary in order to drain or protect such land that a drain bé opened through or dykes erected upon, lands belonging to another or whether mechanical devices should be constructed or used. Third. The amount of damage, if any, sustained by such other land owners, by reason of the opening of such drain or the construction of such dyke. Fourth. Take such other and further steps with reference to the proceeding as are provided by this act.”

Section 8 provides that, after filing of such determination, any person aggrieved may appeal therefrom “to the court in which such proceeding was instituted,” and the court shall “hear and determine such appeal;” and it is further provided, viz.:

“The court shall enter an order in relation to such determination, reversing, affirming or modifying the same, and such order, shall be final and conclusive in relation to all matters involved in the appeal.”

In section 11 a provision is inserted that a person aggrieved by an assessment may appeal to the court in which such proceeding was instituted, or is pending, for the correction thereof; and that section further provides that after hearing the appeal the court “shall enter an order confirming or setting the same aside, from which order there shall be no appeal.”

The provisions we have already referred to are sufficient to indicate that the statute of 1895 differs widly from the act of 1869 and the act of 1871 amending the same. It may be observed, in passing, that the act of 1895 does not, in terms, repeal the statute of 1869, or the statute of 1871.

It is contended by the learned counsel for the respondent that the proceedings before us may be upheld under the new provision ,of the constitution, to which reference has been made, and the statute of 1895, passed in pursuance of the authority conferred by the new constitutional provisions. We are not persuaded that such course ought to have been adopted by the county court. The constitutional provision was prospective. It authorized the legislature, at a subsequent period, to pass a general law permitting the owners of agricultural lands to construct and maintain, for drainage thereof, necessary drains, ditches, and dykes upon the lands of others. Hntil the passage of such law there was no authority for conducting the proceedings in virtue of the constitutional provision. The provision contained in the general law passed in 1895 were so unlike the provisions found in the legislation of 1869 and 1871 that we are of the opinion that the proceedings instituted in 1891 ought not to be upheld under the statute of 1895. We are of the opinion that neither the constitutional provision, nor. the statute of 1895, should have retroactive effect, inasmuch as there is no express language in either the constitution or in the statute evincing the intent that they should be retroactive. All the language of the new constitutional provision, and of the law passed in 1895, can be satisfied by giving a construction which shall regard it as prospective in its operation. Railroad Co. v. Van Horn, 57 N. Y. 473; O’Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406; 68 St. Rep. 432; Shreveport v. Cole, 129 U. S. 43. In the latter case the following; lagúage was used:

“Constitutions, as well as statutes, are construed to operate prospectively only, unless, on the face of the instrument or enactment, the contrary intention is manifest, beyond reasonable question.”

The foregoing views lead us to the conclusion that the county-court fell into an error in upholding the proceedings. We think its order and judgment should be reversed, and the proceedings in stituted in 1891 should be dismissed, with costs.

Judgment and order of the county court of Monroe county reversed, with costs, and the proceedings dismissed, with costs.

All concur.


text:
    William T. Slattery et al., Resp'ts, v. Samuel E. Haskin, App'lt.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed March, 1896.)
    Appeal—Conflicting evidence.
    The appellate court will not disturb the finding oí a referee upon a conflict in the evidence.
    Appeal from a judgment entered in favor of plaintiffs upon the-report of a referee.
    The action was commenced in justice court the 23d of May, 1885, in the town of Avoca, where a judgment was rendered by the justice on July 3, 1885, in favor of the plaintiff? for $171.13 damages. In the complaint it was alleged that the plaintiffs werecopartners doing business at Wallace, in the aforesaid town, and, that the defendant was indebted to them for goods, wares, and merchandise sold and delivered by them to the defendant, his family, hands, servants, and agents, of the value and agreed price .of $195, for which defendant promised to and agreed to pay the plaintiffs. The answer consisted of' a general denial, “and claims an offset to the amount of $490 against any demand of the plaintiffs.” Defendant appealed to the county court of Steuben county for a new trial, whereupon the action was referred to O. F. Kingsley, Esq., to hear and determine, and upon his report judgment was entered, from which the appeal is taken. Exceptions were taken to the referee’s findings arid to certain refusals to find. The appeal was taken from the judgment of the county court on December 10, 1887. From the evidence it appears-that the parties had some dealings prior to April, 1882, and on-the 24th of April, 1882, they settled their accounts leaving no balance due to either party. It was claimed at the trial that an agreement was entered into to the effect that the plaintiffs should sell and deliver to the defendant goods at 12 per cent, above what, the same cost plaintiffs, and that defendant should pay therefor in checks to be delivered to plaintiffs by defendant’s wife, and plaintiffs should credit all checks so received by them, and charge the defendant for all goods sold and money paid to him or his wife in a book to be kept by the plaintiffs for that purpose. The principal matters in controversy arose between April 24, 1882,. and April 24, 1883.
    Irving Paine, for app’lt; John F. Little, for resp’ts.
   HARDIN, P. J.

From the evidence it appears that the-plaintiffs were copartners doing business as merchants at Wallace, in the town of Avoca, Steuben county, in 1882 and 1883, and they sold goods and merchandise to the defendant, most of which were received by his wife and family; that in the course of the dealings a pass book was used, prepared by the plaintiffs, and delivered to the defendant or his wife; and that in 1882 the pass, book was produced, and a settlement had between the parties, and it was found there was no balance due from one to the other. Thereafter the defendant continued to trade at the plaintiffs’’ store, and the account which is the subject of this action accrued; and while the account was thus accruing it seems the defendant or his wife was accustomed to take checks to the plaintiffs’ store, and have some of them credited upon the account and some of them cashed. Thereafter a controversy arose over the checks cashed by the plaintiffs, and as to the amount of cash received to apply on the account of the plaintiffs. There is a conflict in the evidence between the plaintiffs’ witnesses and the defendant’s witnesses as to the checks of the defendant which he indorsed to his wife; the wife insisting that there had not been credited upon the account all moneys which she had paid to, or intended to-pay to, the plaintiffs upon the account. It was for the referee to-determine what credit should be given to the defendant’s wife, after considering all the circumstances surrounding her, and her testimony upon the vital question of fact involved in the case. Elwood v. Telegraph Co., 45 N. Y. 549; Roosa v. Smith, 17 Hun, 138; Wilcox v. Selleck, 92 Hun, 38; 71 St. Rep. 800. The referee seems to have resolved the principle features as to the conflict arising upon the evidence before him in favor of the plaintiffs. We ought not to disturb his finding upon the conflict in the evidence. The referee has written a sensible opinion, showing the manner in which he dealt with the evidence before him. The appellant does not point out any error requiring an interference with the conclusions stated in the referee’s report. For-do the exceptions taken during the progress of the trial require us to interfere with the decision made by the referee. .The judgment must, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: LAWRENCE, J.

text:
    Manhattan Railway Company, Pl'ff, v. O'Sullivan et al., Def'ts.
    (Supreme Court, New York Special term,
    Filed February, 1896.)
    Commissioners—Award—Setting aside.
    A stay on an appeal from an order of the special term, setting aside the award of commissioners, may be granted.
    Davies, Short & Townsend, for pl’ff; Evarts, Choate & Beaman, for def’ts.
   LAWRENCE, J.

This is a motion for a stay on an appeal from an order of the special term setting aside the award of commissioners. The order appealed from awarded to the defendants $75,000. That order has been set aside, and new commis.sioners appointed in the proceeding. The trial before the old commissioners occupied several months, and involved large legal expenses. It is claimed on the part of the railway company that the court has no power to grant such a stay, for the reason that the order is not final, hut, an interlocutory, order. I am of the opinion that it is within my power to grant a stay under the general provisions of section 1347, Code Civ. Proc. The order affects a substantial right, and it would seem to be a great hardship to compel the property owners to go on with another proceeding, before a new set of commissioners, before having the question determined whether the order setting aside an award for $75,000 was or was not erroneous. See, also, section 3382, Code Civ. Proc. Motion granted upon condition that the appellants stipulate to argue the appeal before the appellate division at the March term, and give an undertaking to pay all costs and damages, not exceeding the sum of $500. Settle order on one day’s notice.


text:
    Foster, Pl'ffs, v. Electric Heat Regulator Company, Def't.
    (Supreme Court, New York Special Term,
    Filed February, 1896.)
    1. Summons—Publication—Foreign corporation.
    Where an action is brought against a foreign corporation, all the facts required by section 1780 of the Cqde must be set forth in a verified complaint, in order to enable the plaintiff to obtain an order of publication and to give the court jurisdiction for that purpose.
    3. Same.
    In such case, it is necessary that the plaintiff, in his complaint, should show that he was a resident of this state.

      3. Same—Amendment.
    In such case, a special term order, permitting plaintiff to amend his complaint nunc pro tunc, is of no avail.
    E. A. S. Man, for pl’ff; Oliver C. Semple, for def’t.
   LAWRENCE, J.

In this case, the defendant, for the purposes of motion only, appears and moves to vacate an the service of the summons by publication, dated and filed on the 26th day of September, 1895, together with any service of such summons made thereunder. The motion is made upon the papera on file, on the ground of want of jurisdiction in the justice making said order —First, because the justice making such order was then and there without power to make the same, for want of a verified complaint showing a sufficient cause of action against the defendant directed to be served; second, because this court was then and there without jurisdiction of the cause of action set forth in the complaint, as appears upon the face of such complaint, under 1780 of the Code of Civil Procedure.

Section 1780 of the Code of Civil Procedure provides that an action against a foreign corporation may be maintained by a resident of the state, "or by a domestic corporation, for any cause of action. .Section "439 of the Code of Civil Procedure provides the order of publication must be founded upon a verified complaint showing a sufficient cause of action against the defendant to be served, -etc. It was held by the general term of this department in Ladenburg v. Com. Bank, 87 Hun, 269; 67 St. Rep. 466, that in an action brought against a foreign corporation, 'commenced by attachment, where the cause of action arose without the state of New York, the supreme court has no jurisdiction, unless the plaintiffs are residents of the state of New York. It was held in the case of Bryan v. University Publishing Co., 112 N. Y. 382 ; 21 St. Rep. 21, that to authorize an order under Code Civ. Proc. § 438, directing service of summons by publication on the ground that the defendant is a nonresident, not only is an affidavit of nonresidence necessary, but also a verified complaint showing a sufficient cause of action against the defendant to be served (Code Civ. Proc. § 439), and that the case is one of which the court can take cognizance. And in Pagent v. Stevens, 143 N. Y. 172-177; 62 St. Rep. 193, the court say that, under the •provisions of the Code of Civil Procedure providing for the service of a summons by publication upon a defendant out of the state (sections 438, 439), which require that the order directing such a service shall be founded upon a verified complaint showing a sufficient cause of action against a defendant to be served, it is not sufficient that the complaint set forth facts sufficient to constitute a cause of action; the cause of action must be one of which the court can take cognizance. It is apparent from these decisions that, where an action is brought against a foreign corporation, all the facts required by.section 1780 must be set forth in a verified complaint, in order to enable the plaintiff to obtain an order of publication, and to give the court jurisdiction for that purpose. In this case it was necessary, under section 1780, that the plaintiff, in his complaint, should show that he was a resident of this state. There was no such allegation in the verified complaint which was submitted to the learned justice who granted1 the order of publication. On the contrary, it appeared from the contract, which was set forth at length in the complaint, that both plaintiff and defendant were.nonresidents. The plaintiff relies upon an order made by one of the justices of this court, permitting him to amend his complaint nunc pro tune; but, as the defect in the first instance was jurisdictional, the. amendatory order is of no avail. See Ladenburg v. Com. Bank, 87 Hun, 274; 67 St. Rep. 466, and cases cited. In the Ladenburg Case it had! been held at the special term that the defect could be cured by an affidavit filed nunc pro tunc, but the general term, as already stated, did not concur in that view. I am of the opinion, therefore, that this motion must be granted. Settle order on one day’s notice.


text:
    Morton, Pl'ff, v. Chesley, Def't.
    (Supreme Court, New York Special Term,
    Filed February, 1896.)
    Arrest—Complaint—Value.
    In order to sustain an order of arrest under section 550, the plaintiff must, in an action of replevin, state the actual value of the property.
    Motion to vacate an order of arrest.
    Blair & Rudd, for pl’ff; Norwood & Dilley, for def’t.
   LAWRENCE, J.

This is an action of a sole surviving par!ner, to recover the possession of certain books of account, the property of the partnership. The defendant is the administrator of the deceased partner. The arrest was granted upon an allega-¡ tion that the defendant had removed a part of these books from, the state of Hew York, so that they could not be found or taken1 by the sheriff. The motion is made upon the papers upon which it was granted, namely, the complaint and certain affidavits.' Thereisno positive allegation of the value of the books in the complaint, and this is claimed to be a fatal defect, on the authority of; Crotty v. Kimball, 22 Wkly. Dig. 433, and Gordon v. Fox, 11 N. Y. Supp. 5.

In Crotty v. Kimball the order of arrest was granted upon the complaint and affidavit of one of the plaintiffs, in which it was alleged that the defendant, who was an attorney at law, had been employed by the plaintiffs, as administratrices of an estate, to appear for them and represent them in closing up said estate, and that, in the course of his employment, defendant received the. sum of $6,123.23, belonging to s.aid estate; that plaintiffs hacl frequently demanded of defendant the said sum, with interest, less different amounts defendant had, from time to time, paid out by direction of plaintiffs, but that defendant had refused to pay the same, though admitting that there was a large unexpended balance remaining of said amount. There was, however, no statement made of any specific sum alleged to be due. The general term of this departmnt (Brady, J., delivering the opinion) held:

“That the statement of some specific sum due in an action of this character is essentially necessary to authorize an order of arrest, for the reason that the amount of bail iff which defendant is to be held is contolled by the alleged indebtedness.”

Gordon v. Fox was an action for the specific performance of a contract for the transfer of an interest in a patent, the plaintiff alleging that the value of the interest is $250,000, but stating no facts justifying that assertion. It was held by Barrett, J., at special term, that there was nothing alleged to show the value of the patent, and that an order of arrest granted under section 550 of the Code of Civil Procedure should be vacated, for the reason that there was nothing upon which to fix bail.

In Thompson v. Gould, 16 Abb. Prac. (N. S.), 424, it was held that, in an action for damages for refusal to receive and pay for certain gold contracted for by defendants, an allegation of damages in the complaint in the words that, by said refusal, plaintiff assignee was damaged in the sum of $567,000, without, as matter of fact, showing how that or any damage arises was insufficient to give defendants notice of the question to be tried, and a demurrer to such complaint for want of sufficient cause of action was sustained.

The only averment ‘in this case bearing the question of value is contained in paragraph eight of the complaint, which is as follows: “That, by reason of the wrongful taking and detention of said books, plaintiff has suffered damage in the sum of $1,000.” If the cases above cited are applicable to this case, this allegation would appear to be too indefinite to enable the court to fix the amount of bail. Section 1695 of the Code of Civil Procedure (subdivision 6) requires a plaintiff in an action of replevin to state the actual value of the property. . Section 1722 provides for the recovery of damages for injury to or depreciation of the chattel while in the defendant’s possession, and requires that in that case he must set forth the facts in his complaint, and demand judgment for damages accordingly. Section 1726 provides that the verdict, report, or decision must fix the value of the chattel where the chattel has not been replevied. And section 1730 malees the value thus determined an element of the judgment. I agree with the counsel for the defendant that, the element of value thus being an issue in the case, it should have been pleaded. See, also Westervelt v. Agramaria, etc., 58 Hun, 147; 33 St. Rep. 833.

Por these reasons, I am of the opinion that the order of arrest should be vacated, with costs to the defendant.


author: TRUAX, J.

text:
    In the Matter of the Application by William P. Parke, for Appointment of Committee of John Parke, an Alleged Lunatic.
    (Supreme Court, New York Special Term,
    Filed January, 1896.)
    1. Lunatic—Committee—Notice.
    Section 2325 oí the Code does not require notice to be given to a relative of the alleged incompetent person, when the application for the appointment of committee is made by husband or wife.
    2. Same.
    Where it is made to appear that a commission is in force, the-court will refuse to appoint a certain person^committee of the person and property of the alleged incompetent person.
    William L. Flagg, for the motion; Frank Moss, opposed.
   TRUAX, J.

I am of the opinion that section 2325 of the Code does not require notice to be given to a relative of the alleged incompetent person when the application for the appointment of committee is made by the husband or wife. The statute contemplates that the motion for the appointment of a committed may be made by “any person,” and that if made by any person other than husband or wife, or a relative, notice thereof must be given to the husband or wife, or to a relative. Notice is only, to be given to a relative when not given to the husband or wife.' In this case it was unnecessary to give notice to the wife, because she made the application. It is to be noticed that this is not an application to set aside the commission heretofore issued herein,] and that, therefore, I cannot set that commission aside, even if it has been improperly issued. The motion is to appoint a cer-¡ tain person committee of the person and property of the alleged incompetent person. This I decline to do, because it has been' made to appear that a commission is now in force, and on the return of that commission the matter can be brought before the court.

Motion denied, without costs..