author: Van Wyck, J.

text:
    John Spaulding, by Guardian, etc., App’lt, v. Tucker and Carter Cordage Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    1. Master and servant — Machinery.
    Section 6, chap. 560 of 1889, devolves no greater duty upon the master than the common law did.
    3. Same — Inspector.
    The legislature intended to vest the factory inspector, appointed under this act, with a discretion to designate, within certain limitations, the specific requirements to be enforced in relation to the specific machine or appliance.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance. '

      Chas. J. Patterson, for pl’ff ; Cannon & Atwater, for def’t.
   Van Wyck, J.

— A motion for nonsuit herein was granted, and the plaintiff’s exceptions thereto ordered to be heard in the first instance at general term. The plaintiff, a lad of sixteen, employed in a ropewalk, tripped on one of the rails of the track upon which the twisting machine traveled, and in falling he extended his hand towards the machine, in the cogwheels of which it was caught and badly mangled. He was not employed to work upon the machine, but to spread the strands along the ropewalk, for those in charge of the machine to then attach them thereto, and twist into a finished rope, and it can be fairly inferred from the evidence that this duty required him to hold the completed rope taut while it was being reeled on a drum. The plaintiff’s counsel, on the oral argument herein, acquiesced in the assumption that the case of Buckley v. Gutta Percha & R. Manufacturing Co., 113 N. Y. 540 ; 23 St. Rep. 618, virtually settled this exception adversely to him, unless the law thereof was changed by Laws 1889, chap. 560, § 6. The purpose of this statute, according to its title, was to regulate the employment of women and children in factories, and to provide for the appointment of inspectors to enforce its provisions. The plaintiff insists that defendant neglected to comply with the provision that “all * * * cogs * * * shall be properly guarded,” and that such failure made defendant liable, or furnished such additional element of negligence as to carry that question to the jury, notwithstanding the decision in Buckley v. Manufacturing Co. Did the defendant fail to comply with such provision ? is a question which can only be answered after determining what the words “ shall be properly guarded ” mean. Do they signify any more than the performance of the duty imposed by the antecedent or common law upon the employer towards Ins employe, viz., the duty of exercising reasonable care to furnish his

employe with reasonably competent and careful fellow servants, a reasonably safe place to work in, and reasonably safe tools, implements, and machinery to work with or upon ? The expression “ properly guarded ” must be interpreted in the light of what the then existing law deemed to be proper for an employer to do under the circumstances. It was “properly guarded” if it was so guarded as to meét the demands or requirements of reasonable care. There is no proof that the cogs in question could have been guarded in any manner that would have tended to make them safer for those working around the machine without preventing the use of the same. This provision devolves no greater duty upon the master than the common law did. Freeman v. Glens Falls P. Mill Co., 70 Hun, 530, 534; 53 St. Rep. 786. That duty has been performed. Buckley v. Manufacturing Co., supra. Of course, if this statute had prescribed that no cogs should be used except such as could be completely boxed in from sight and touch, then another question would have been presented. It is not perfectly clear that the clause, “in the discretion of the inspector,” does not qualify that in relation to the cogs; and, if this be so, then the latter would be inoperative until such discretion had been exercised. A legislative intent to vest the inspector with a discretion to designate, within certain limitations, the specific requirements to be enforced in relation to the special machine or appliance, is suggested — First, by the title, — to regulate the employment of women and children in manufacturing establishments, and the enforcement of same by inspectors; second, by the necessity of vesting such discretion rn some one, owing to the impossibility of naming in a statute the specific safeguards to be applied to each part of every one of the many thousand kinds of machinery ; third, by the use of the phrase, “ in the discretion of the inspector,” in the section in question; and, fourth, by the amendment of this section (Laws 1892, chap. 673, § 8) authorizing the inspector to prohibit the use of any machinery till “ the required safeguards are provided.” There is no conflict between pur views and those of the court in Simpson v. N. Y. Rubber Co., 80 Hun, 416 ; 62 St. Rep. 93, for the only question passed upon in that case was whether an employe could waive the neglect of his employer to provide the safeguards required by the statute. The exceptions m«ust be overruled, and judgment ordered for defendant, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Anton Eifinger, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    1. Evidence — Opinion.
    In an action for personal injuries, it is not error to permit an expert physician to testify that the thickening of the pleura which he found will be permanent, and that he knows this to a reasonable certainty.
    2. Damages — Excessive.
    A verdict for $3,600 for personal injuries was held, under the circumstances of this case, not to be excessive.

      Appeal from a judgment, entered on a verdict in favor of and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Dailey, Bell, & Crane, for resp’t.
   Van Wyck, J.

— This action was brought to recover damages for injuries to plaintiff’s person, wagon, and goods through the alleged negligence of defendant. The jury gave plaintiff a verdict for $3,608, and from the judgment entered thereupon, and from the order refusing a new trial, this appeal has been taken. Counsel for appellant urges a reversal on three grounds : .First, that the motion for nonsnit should have been granted; second, that the testimony of Dr. Adams, found at folios 107 to 123, was improperly admitted against objection ; and, third, that the verdict is excessive.

We have considered and weighed carefully the testimony bearing upon the first ground, viz. the want of negligence of defendant, and the contributory negligence of plaintiff, and are satisfied, not only that there was sufficient to carry these questions to the jury, but that the jury rightfully decided both questions in favor of the plaintiff. The plaintiff was driving his wagon on the car track on Myrtle avenue, going towards Ridgewood, and was in plain sight of defendant’s motorman, whose car was moving on the same track, and in the same direction, at a considerable distance behind the wagon, We are convinced that the motorman carelessly and recklessly drove his car against the wagon while plaintiff was making every proper effort to get off the track and out of the motorman’s way. The injuries were caused by such collision. From the evidence it appears that the plaintiff was a perfectly sound and healthy man before the accident, working every day in his peddling business ; that in the collision he was thrown from his wagon to the street, striking his right side with such violence as to badly bruise him in that region, and fracture his fifth rib, and rendering him unconscious for a time; he was confined to his house for eight weeks, and suffered much from pain, experiencing at once a difficulty of breathing and asthmatic respiration, with fever ; that he has a permanent pleuritic thickening and diminished respiration, and has suffered much with pain continually, from the accident to the present time; that breathing or lifting still gives him pain in the injured side, and he has ever since been restless in sleep, and suffers from insomnia; that such injuries have so far -changed his physical condition as to disable him from working at the usual business more than half the time, whereas formerly his robust condition enabled him to work all the time. The extra strain of such an accident, including pain, confinement, loss of sleep, diminished respiration, pleuritic thickening, disability to breathe or lift without pain, disability to attend as formerly to his business, worry and uneasiness incident to these, upon the naturally waning vitality of a man of sixty-four, is a serious matter indeed, for he has no longer the rebound and recuperative powers of youth. The cost of repairing wagon, loss of merchandise, bills of doctors and druggist will amount to over $100. Though we think the amount of the verdict is a full, and perhaps a generous, compensation for those injuries to plaintiff and his property, yet it does not suggest to our minds any disregard by the jury of the instruction that the damages awarded must only be compensatory. Conservative men will necessarily differ in their estimation of damages for personal injuries, more than they will for those to articles of commerce. In the latter class they have the aid of the trade report quotations, but in the former class no such definite source of information can be resorted to. Under the circumstances of this case, we do not feel that we would be justified in disturbing the verdict on the ground of excess.

We have examined the testimony of Dr. Adams, and considered the objection that plaintiff’s counsel failed to make good his assurance of connecting it with the accident. If he did so fail, then defendant’s counsel should have moved to strike it from the case, or should have requested the court to instruct the jury to disregard it; but it seems to us it was connected with the accident, for it referred to the present condition of the side that was injured, and the rib that was fractured, and the impaired respiration that immediately followed the accident. . The admission of such portion of this doctor’s testimony as was excepted to seems to us to have been proper, both in its form and substance. He only enumerated the injuries and impairment that he found in the definitely fixed wounded region a short time before the trial, which corresponded to those that the plaintiff and other witnesses had already specified as caused by, or immediately following, the accident. We cannot believe it is seriously urged to be error to permit an expert physician to testify that the thickening of the pleura which he found will be permanent, and that he knows this to a reasonable certainty. x

Judgment and order must be affirmed, with costs.


author: Osborne, J.

text:
    Model Building and Loan Association, Pl’ff, v. Thomas Patterson et al., Def’ts.

      (Brooklyn City Court, Special Term,

      Filed May 1895.)

    Injunction — Rival claimants foe cobpoeate office.
    Upon a proper case, a court of equity will interfere by injunction and restrain the claimants for corporate trusteeship, who are out of possession, from interfering with the possession of the corporate books and assets till the title of the rival claimants to office as trustees can be properly adjudicated upon, either in an action at law or by a proceeding in the nature of a quo wan-onto, or by the summary proceeding provided by section 27 of the General Corporation Law ; but the granting of such injunction is not to be construed as in any manner passing upon the validity of the claim of either set of claimants to the trusteeship which they claim to hold.
    Action for an injunction.

      Judge & Durado, for pl’ff; Grout, De Fere & Mayer, for def’ts;
   Osborne, J.

— This action is brought in the name of the plaintiff by the board of trustees thereof who were in office prior to January 28, 1895. They clam still to be such trustees, and they are in the present possession of the books and papers of the plaintiff, and of its assets, valued at about $12,000. Defendants claim to constitute, with others, the present legally elected board of trustees of plaintiff, and seek to obtain possession of the books of plaintiff. Plaintiff asks for judgment enjoining defendants from interfering with the association, and from attempting to seize any of the property of the plaintiff.

It is well settled that a court of equity has no inherent power to try, as a naked question, the disputed title to office of trustees of a corporation; nor will it undertake to do so. Such a contest involves the determination of questions of law, which are not properly cognizable, in the first instance, in a court of equity. Where, however, one set of trustees claims to be defacto in office, and has the possession and control of the corporate books and assets, and it appears that a rival board of trustees, claiming to be such trustees de jure, is seeking to obtain possession and control of the corporate assets, then a court of equity will interfere, not to decide who are the legal trustees, but to prevent an unseemly struggle for possession between the rival boards of trustees; and, on a proper case being made, a court of equity will interfere by injunction, and restrain the claimants out of possession from interfering with the possession of "the corporate books and assets till the title of the rival claimants to office as trustees can be properly adj udicated upon, either in an action at law or by a proceeding in the natufe of a quo warranta, or by the summary proceeding provided by section 27 of the Gfeneral Corporation Law (Laws 1892, chap. 687), but the granting of such injunction is not to be construed as in any manner passing upon the validity of the-claim of either set of claimants to the trusteeship which they claim to hold. Reis v. Rhode, 6 Civ. Proc. Rep. 406; Ciancimino v. Man, 1 Misc. Rep. 121; 48 St. Rep. 697, and cases cited. Applying these well-settled principles of law to the case now before me, I am of the opinion that, while plaintiff has failed to make out any case of conspiracy or fraudlent intent on the part of the defendants, yet it does appear that defendants do seek” to obtain possession and control of plaintiff’s books on the ground that they have been legally elected trustees of the plaintiff, and are entitled to such possession and control. The validity of defendants’ claim to such possession and control depends entirely on whether they are such trustees, and that issue, as before stated, cannot be tried in this action. Under all the circumstances disclosed on the trial, it seems to me proper, and for the best interests of plaintiff and its shareholders, that equity should interfere to prevent any unseemly contests or quarrels between the plaintiff and the defendants looking to obtain the possession and control of plaintiff’s books and assets until such time as the question as to who constitute the present board of trustees of plaintiff can be fairly passed upon in the manner provided by law. I therefore direct that the defendants be enjoined from interfering with or attempting to seize any property of the plaintiff; but such injunction shall not be construed in any way as interfering with or prevent-ing any legal proceedings which either or any party hereto may take to obtain a legal determination of the question as to who constitute the board of trustees of the plaintiff, or to carry any such determination into effect, nor shall it interfere with any steps that defendants, or any of them, may see fit to take with a view of maintaining their alleged membership in the plaintiff.Ordered accordingly.


text:
    Thomas F. Connaughton, by Guardian, etc., App’lt, v. Brooklyn and Brighton Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    -Carrier — Passenger— Proof.
    The evidence, in this case, was held insufficient to show that plaintiff, who was injured while attempting to hoard a moving train, was invited by the engineer to get on his train.
    Motion for a new trial on exceptions ordered to be heard at ■ general term in the first instance.

      Chas. J. Patterson, for pl’ff ; Geo. I. Murphy, for deft
   Van Wyck, J.

— The trial court granted a motion for nonsuit, .-and directed the exceptions taken thereto to be heard in the first instance at the general term. The defendant controls a regular •steam railroad running from Atlantic avenue, Brooklyn, to Coney Island, with regular stations for taking on and letting off passengers. It appears that on August 8, 1892, the plaintiff, a boy of fifteen years, was asked by Engineer Yan Brunt, who was standing by his engine, to get him twenty cents worth of paint; that he went to a neighboring store for the same, and on returning with it he found Yan Brunt and his engine gone; that plaintiff then went to the flag house between two stations, and waited there .about an hour, explaining to Marshall, the switchman, his errand for the paint. Presently, another train having started for Coney Island,_came along at about three miles an hour, the engineer of which saluted this switchman by a single waive of the hand, a •common thing in this and all railroad yards. This switchman, having in mind the story of plaintiff and his paint can, suggested to him that perhaps this was the engineer who sent him for the paint, and “imagined” that this engineer was looking out for plaintiff, and so told him, when plaintiff ran and jumped on the .step of the next to the last car of this moving train. As he did so, he says he felt a violent jar, which caused him to lose his balance and fall off, injuring him most seriously. It is likely he did feel it, for such jars are incident to the moving of a steam train, and were especially so here, because the train was turning from the incoming track across to the outgoing track at this juncture. We think the evidence falls far short of establishing the claim that this engineer invited the plaintiff to get on his train, or that the accident was due to the negligence of defendant. It is manifest that this young man’s sad misfortune is directly chargeable to his own indiscretion in voluntarily assuming the chances of the dangers attending the boarding of a moving train, a hazard which perhaps he would not have taken except for the unwise advice implied in the expression of this switchman’s thought that this engineer was looking out for the boy. This thought, it is clear, was the result of the switchman's imagination, awakened by the association of the story of the paint can and the usual salute, by a waive of the hand, of the passing engineer, to the yard employes of his company. The conduct of the switchman in this respect cannot render the defendant liable. This case does not come within the rule of a line of authorities illustrated by Rounds v. Railroad Co., 64 N. Y. 129, in which a company has been held liable for negligently exercising its right of removing one who is not a passenger, but rather within the rule declared in Hunter v. Cooperstown, etc., Railroad Co., 126 N. Y. 18; 36 St. Rep. 367. The exceptions must be overruled, and judgment ordered for defendant, with costs.


author: Clement, C. J.

text:
    Charles Paulson, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    ^Negligence — Contributory.
    A party, in attempting to board the front step of a moving trolley car, is bound to exercise the care of a reasonably prudent person, and more care is necessary than if he had waited to board the rear step, or for the car to stop.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Foley & Powell, for resp’t.
   Clement, C. J.

— The plaintiff, on the ‘ morning of March 24, 1893, attempted to get upon the front step of a closed trolley car operated by defendant. He had in his left hand a sash cord from thirty to fifty feet long, made into a bundle of about one foot in length, and about an inch and a half to two inches in thickness. A hammer was stuck through the sash cord. Plaintiff testified that he signaled to the motorman to stop the car; that the motorman began to work his brake, slowed down his car, and that he (plaintiff) grabbed the front rail of the front platform with his right hand, and got both feet upon the step. At folios 28 and 29 he said:

“I grabbed the front rail with my right hand, and I don’t remember if I had hold with the left hand or not. Well, then the car made a jolt. I had both feet on the step, — stood like this,— and the car struck me here, and the car made a jerk. The car started ahead quick. * * * Q. Did that happen as soon as you put your foot on the platform ? A. Soon; all in a moment; the car started quick. Then I don’t remember any more, only that I remember that I hung onto the car with my right hand.”

The plaintiff had no witness to corroborate his testimony. Eight witnesses for the company testified that the car was moving at the ordinary speed when plaintiff attempted to get on. Several disinterested witnesses testified that the plaintiff missed the hand rail with his left hand, and was dragged by the car for that reason, while he was holding on with his right hand. We think that the plaintiff failed to make out a case against the company. He attempted to board the front step of a moving trolley car. In so-doing, he was bound to exercise the care of a reasonably prudent person, and more care was necessary than if he had waited to-board the rear step, or for the car to stop. He was injured because he failed to take hold of the hand rail on the body of the car with his left hand. Plaintiff testified :

“ I grabbed the car with my right hand first, and then I knowed that I had in my mind to strike the other rail with the left hand. I got hold of the hand rail at the dashboard with my right hand, and I got a good hold of that, and I attempted to get hold of the hand rail next the body’of the car with my left hand; and, at. that time, on my left wrist was hanging this roll of rope and this hammer; and whether I caught hold of that, or missed that hand rail, I don’t know.”

'The testimony of the plaintiff that there was a “jerk ” or sudden movement of the car when he jumped on the step does not necessarily show that there was negligence on the part of the motorman. When a person steps on a moving car there is always a jei'k or sudden movement. According to the testimony of the witnesses for the defendant, the instant the plaintiff mounted the step of the car the motorman turned on his brake, which would necessarily produce a sudden jerk of the car. The plaintiff did not contradict such testimony, and inferred, without knowledge of the fact, that the car was suddenly started, because lie felt a jerk as soon as he got upon the step. The plaintiff did not use his left hand in attempting to get on, or, if he did make the attempt, could not use his hand by reason of the sash cord and hammer which he carried. The testimony of the plaintiff as to the speed of the car is conflicting and confused.

Judgment and order denying new trial reversed, and new trial-granted ; costs to abide the event.


text:
    Bertha Elsner, as Administratrix, etc., Resp’t, v. Prudential Insurance Company of America, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    Evidence — Declaka.tions—Agent.
    The statements of an agent, who is employed solely to collect weekly premiums, are not binding upon the company, where the policy provides that, agents are not authorized to make, alter or discharge contracts, waive-forfeitures, or receive premiums in arrears.
    Appeal from a judgment entered on a verdict in favor of and from an order denying a motion for a new triaL

      Magner & Hughes, for app’lt; Chas. J. Kurth and J. Stewart Ross, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover on a policy issued by defendant, September 12, 1887, on the life of her husband, August Eisner, whereby defendant, in consideration of á weekly payment of thirty-four cents, agreed to pay $500 on the death of said Eisner, and satisfactory proof thereof. The eighth ■clause or condition of the policy provided as follows:

“ (8) If, after the payment of the weekly premium hereon for five or more years, this policy shall become void by reason of default of payment of premiums, the company agrees to issue a paid-up policy for the sum hereby insured, for a term of as many weeks,” etc.: “ * * * provided that this policy shall be surrendered to the company, and application made in writing for such paid-up policy, within sixty days after default in the payment of premiums thereon.”

And the eleventh clause or condition of said policy was as follows:

“ Agents are • not authorized to make, alter or discharge contracts, waive forfeitures, or receive premiums in arrears beyond the time allowed by the regulations of the company, which in no case shall exceed four weeks.”

August Eisner, the assured, died March 29, 1893. It is conceded that the proportionate period fixed by the eighth clause of the policy was, in the present case, for a period of sixty weeks. It appeared from the evidence, and is not disputed, that the last weekly payment on the policy in suit was made on October 31, 1892, for the premium that became due on October 10,1892. Without further payments of premium or action on the part of the ■assured, it is conceded that the policy would have lapsed on November 14, 1892. Plaintiff, however, claimed the right to recover on the ground that the assured had taken the proper steps to obtain a paid-up policy, under the above-quoted eighth clause, and that the defendant postponed and put off issuing such paid-up policy on various pretexts, and thereby misled and induced the assured to discontinue further payment of weekly premiums. The case was tried, and the liability of the defendant was left to the jury to determine, on the question as to whether the defendant, by its officers, waived the payment of premiums on the policy from October 10, 1892, to the date of Eisner’s death : “Did the company, by its officers, agree with the assured that he need not pay premiums while these negotiations were going on ? ” Plaintiff’s evidence was to the effect that on the 7th of November, the week following the date of the last payment, she went to the office of Mr. Ei'chbauer, the superintendent of the Brooklyn division of defendant, and asked if the policy was good for six months without paying, and that Eichbauer told her: “Yes; your policy is good for a whole year, without paying a cent.” Subsequent to that time, plaintiff testified, she had various conversations with one Spies, a collector of the defendant, when he made his weekly calls to collect payments on other policies on the lives of Mrs. Eisner and her four children. That she asked him about her husband’s policy, and was told by the collector for the time being on some occasions, that the superintendent had no time to talk to him about it; on another occasion, that he would take the policy, and examine it in the head office, and “that after that we would get the policy back.” And plaintiff on November 21, 1892, gave the collector the policy, and took his receipt for it. Plaintiff further testified that her husband wrote to the home office of the defendant, at Newark, N. J., inquiring “whether that had all been arranged now with the policy,” and that a letter was received from the company, in reply, stating “ that Mr. Eichbauer would arrange the matter with us.” The collector Spies died early in January, 1893, and one La vinsky acted as collector in his place; and plaintiff testified that she also takcd to him when he called to-collect from time to time, about her husband’s policy, and that he-told her and her husband, on several occasions, “that he must have-lost the policy, and that he had made application for another policy.” All evidence as to plaintiff’s conversations with defendant’s agents for the collection of premiums, and what they said about a new policy, was objected to by the counsel for the defendant, and he excepted to its admission.

We think that the learned trial judge erred in admitting the statements of these collectors of defendant about the new policy. They were agents solely to collect weekly premiums, and under the eleventh clause of the policy above quoted, plaintiff and the assured had notice that they had no authority “ to make, alter, or discharge contracts, waive forfeitures,” etc. The policy provided that in order to obtain a paid-up policy the old policy should be surrendered, and application in writing made for a paid-up policy within sixty days after default in the payment of premiums. This was never done ; and even if the company was disposed to waive those provisions, and did refer the matter to Eichbauer, its Brooklyn superintendent, “for arrangement,” as' plaintiff claimed, no-further application was ever made to him for such paid-up policy by plaintiff or the assured. Bemembering the theory of waiver, on which this case was submitted to the jury, it is easy to see how the jury may have been misled by the admission of the statements of the defendant’s collectors, and so concluded that the company had waived further payments of premiums on the policy in question while the paid-up policy was being arranged for.

Without passing on any of the other questions raised on this appeal, we are of the opinion that in consequence of the erroneous admission of this evidence the judgment, and order denying motion for a new trial, should be reserved, and a new trial ordered ; costs to abide the event.


text:
    Patrick McMullen, Resp’t, v. Edison Electric Illuminating Company of Brooklyn, App’lt.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

      1. Negligence — Privity of contract.
    A third party has no right to maintain an action for injuries, resulting from a breach of contract between two contracting parties.
    2. Same — Exception.
    The only exception to this principle is confined to eases where the inevitable or natural result of the act of the person complained of is death or great bodily harm to some one.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.

      Peck & Field, for app’lt; F. R. Hartmann, for resp’t.
   Van Wyck, J.

— This is an appeal from a judgment in favor of plaintiff and an order refusing a new trial. McLoughlin’s Washington street house had been lighted by defendant prior to the time hereinafter mentioned. The electric service wires, in a pipe, passed through the cellar wall about eight feet above the floor, where they,, when in use, were in the usual way, connected with the light distributing wire system of the house. In the summer of 1893 this-house was undergoing repairs, including, among other things, plumbing and rewiring. Before the work of repairs was commenced, defendant’s servant disconnected the service wires from the house-distributing wires. Plaintiff contends that defendant failed to tape or insulate the ends of the service wires, which is denied by defendant. After carefully examining the testimony on this pqint,, we are inclined to think that the weight of evidence is with the defendant, but we will assume it to be the other way, for the purpose of considering the rules of law involved by the respective parties under such assumption. McLoughlin had contracted with one Donovan to do the plumbing work involved in the repairs, and this plaintiff was his helper and employe; so there was no privity of contract between plaintiff and defendant This confronts us with the question of “the right of a third party to maintain an action for injuries resulting from a breach of contract between two contracting parties.” The general rule, which denies such right, is so well established as to require no citation of authorities; but it is-affirmed that this case comes within an exception to such general rule which is equally well established in this state by Thomas v. Winchester, 6 N. Y. 397; Coughtry v. Woolen Co., 56 id. 124, and Devlin v. Smith, 89 id. 470. The first of these cases was for-mislabeling a deadly poisonous medicine as a harmless one, and the other two cases were for the negligent construction of very high staging and scaffolding of sufficient strength. The putter-up of the medicine intended that it should be used by those-becoming legally possessed of it, and the builder of such scaffold and staging intended that they should be used by the workmen to be placed upon them. The reason for such exception is well stated in the first case: “The death or great bodily harm of some person was the natural and almost inevitable consequences of the sale of belladonna by means of a false lable; ” and this reason is repeated in the other two cases. Does the case at bar fall within the scope or policy of these authorities? We must answer in the negative, for neither the death nor great bodily harm of any one could be expected from leaving these service-wires in their position untaped. Who would have anticipated that any person would have entered this cellar, mounted upon a box, and, after seeing these wires, taken hold of at least two of them at the same time, in such a manner as to make a short circuit, or bring the two wires in contact with his hand near the same point, and thus burn his hand? The evidence is uncontradicted that the Edison current is of low tension, of 115 to 230 volts only, and that the contact with such a current will not cause either death or great bodily harm; and it is fully explained that no burning would have taken place in this case, unless the short circuit had been made by plaintiff, either intentionally or accidently, and the chances of the latter would be slight. That this exception is confined to cases where the inevitable or natural result of the act of the person complained of is death or great bodily harm to. some one is sustained by Loop v. Litchfield, 42 N. Y. 851, Losee v. Clute, 51 id. 494; Swan v. Jackson, 55 Hun, 194; 27 St. Rep. 941. The case of wires, like these, left uninsulated in a cellar, and apparently out of reach, till some one stands upon a box and gets his hand involved in them after seeing them, is not comparable to that of leaving uninsulated wires dangling over or lying upon the surface of a public street, which, it was expressly admitted, would be dangerous to human life. Such admission, that the wires were dangerous to human life, was made in U. S. Illuminatiny Co. v. Grant, 27 St. Rep. 767.

Judgment and order must be reversed, and new trial ordered, with costs to abide the event.


text:
    Abraham Denike, Resp’t, v. Charles W. Denike et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed June 24, 1895.)

    Trusts — Creation by paroi.
    In order to redress or prevent fraud, an oral contract to hold land in trust may he enforced, notwithstanding the statute of frauds.
    Appeal from a judgment, entered in favor of plaintiff.

      H. J. Morris, for app’lts; M. L. Towns, for resp’t.
   Osborne, J.

— Plaintiff, for a cause of action, alleged that one Isaac Denike, the father of the plaintiff and of the defendants Charles W. Denike and Elizabeth A. Burnham, died intestate in January, 1849, leaving a widow, Sarah Ann, and six children, all infants, of whom the plaintiff and the defendants Charles W. Denike and Elizabeth A. Burnham are now the sole survivors; that said Isaac Denike left certain real and personal property, and letters of administration on his estate were issued to said Sarah Ann Denike; that she subsequently was appointed special guardian of said infants, and took proceedings for the sale of said real estate of which her husband died seised, and, under an order of the court, sold the same; that she never accounted for the money so received by her, but invested the same in the purchase, in her own name, of the premises described in the complaint, “with the intent that the same should be held by her as trustee for the heirs at law of said Isaac Denike; ” that in the year 1889 she conveyed said premises, for the nominal consideration of three dollars, to her son, the defendant Charles W. Denike, and that said Charles W. Denike took said conveyance with the understanding that he should hold said premises as trustee for the heirs of Isaac Denike; that in 1893 said Charles W. Denike conveyed said premises, for a nominal consideration, to hi&wife, the defendant Mary A. Denike, and that she now holds the same; that said Sarah Ann Denike, the widow of Isaac Denike, died intestate in December, 1888; and that said defendants Charles W. Denike and Mary A. Denike have, since her death, held said premises, and collected the rents thereof. Plaintiff demanded judgment for a conveyance to him of his interest in said premises, and also for an accounting of the rents. Defendants denied the ■alleged trusts in Sarah Ann Denike, and also that the conveyance to Charles W. Denike was in trust, and they also pleaded the statute of limitations. On the trial of the issues the learned trial judge found all the allegations of the plaintiff to be true; also that the premises in question were the property in common of the widow, Sarah Ann Denike, and her six children, and were used by them as a home for her and one or more of them, as tenants in common, up to the time of her death, and that the defendant Charles W. Denike received a conveyance of said premises in trust to convey, upon the death of Sarah A. Deuike, one-third interest to the plaintiff, and one-third interest to the defendant Elizabeth A. Burnham; and, further, he knew that at the time he received said conveyance from his mother he knew that the said property was not her exclusive property, but was, subject to her life interest, the property of the plaintiff, the defendants Charles W. Denike, Elizabeth A. Burnham, and Frances A. Denike, a daughter of a deceased brother of plaintiff and defendants, who has since died unmarried and without issue. Thereupon an interlocutory judgment was entered, directing the defendants Charles W. Denike and Mary A. Denike to convey to plaintiff one-third interest in said premises, and ordering a reference to take proof •of the net rents received by the defendants. This reference has been’had, and a final judgment has been entered thereon directing a, conveyance to plaintiff of a one-third interest in said premises, and also adjudging that plaintiff recover of said defendants Charles W. Denike and Mary A. Denike the sum of $1,579.40. This amount is made up of $1,254.99, being . one-third of the net balance of rents received by said defendants, with $19.44 interest thereon, and $304.97 costs. The defendants Charles W. Denike and Mary A. Denike now appeal from the said interlocutory and final judgment.

The complaint in this action is most inartistically drawn, and the pleader seems to have proceeded on a twofold theory, — either that plaintiff was entitled to recover the interest in the premises in question as one of the heirs of the father, Isaac Denike, on the ground that his mother invested the assets of his father’s estate in the purchase of the premises, and took the deed in her name, with the intent that she should hold the title thereto as trustee for the heirs at law of Isaac Denike, or that a trust was created in his favor by the deed from his mother to her son, the defendant Charles W. Denike; and in the prayer for relief the plaintiff demands judgment for a conveyance to him of his undivided interest in such premises, as one of the heirs at law of said Isaac Denike, and also for such judgment or order as may to the court seem proper to protect the plaintiff's claim in said premises.

The learned counsel for the appellants alleges, as ground for reversal, that no valid trust, in writing, was ever created, as to-the premises in question, and that, therefore, it is void, under the-statute. Conceding this to be so, still plaintiff, is not, we think, without a remedy in equity. It is well settled that, when the facts show a proper case, a court of equity will intervene to redress or prevent a fraud, and will enforce an agreement, notwithstanding the statute, by reason of the special circumstances. As. was said in Wood v. Rabe, 96 N. Y. 425 :

“There are two principles upon which a court of equity acts in exercising its remedial jurisdiction, which, taken together, in our opinion, entitle the plaintiff to maintain an action. One is that it will not permit the statute of frauds to be used as an instrument of fraud, and the other that where a person, through the influence of a confidential relation, acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief.”

See, also, to the same effect, Goldsmith v. Goldsmith, 58 St. Rep. 134; affirmed 64 St. Rep. 675.

We have, in the case before us, the same confidential relation between parent and child as existed in the case just cited. It was not disputed, and the findings show, that the funds with which the premises in question were purchased were the proceeds of the inheritance of the plaintiff and his brothers and sisters, subject to their mother’s interest; and it is also found that the mother and children, or some of them, enjoyed the premises in common. Towards the close of her life, the widow sought to dispose of the property in such a way as to secure to each of her surviving children his or her fair share therein, and so conveyed the same to her son for that express purpose, in the full confidence that he would carry out her wishes. Plaintiff’s testimony on this point is as follows:

“My mother died on the 10th of December, ’88, I think; and I think on the 8th or 10th of January, the following month, I met my brother, Charles W. Denike, and I asked him, was he going to put that will on record. He said, ‘What will ?’ I said, ‘The will that you have got down in the safe-deposit company box.’ He said, ‘I got no will there.’ I said, ‘I saw a will in a box, the time I went down there with you, and you opened the box, — the will of Sarah A. Denike.’ He said: ‘ That is an old envelope which had been holding the will in. That is all.’ He said : ‘ I have the property in my name, — my mother gave it to me for three dollars, — and it is to be divided between you and Elizabeth and myself.’ So it went on until February. I asked him occasionally about it He said he would fix it up in a few days. So, in February, I was coming down Myrtle avenue, to-come down to the hall, and he was going up, and I met him at North Elliott Place. I said, ‘ Charles, what are your going to do about that property ?’ He said: ‘I will tell you what I will do. I will allow $5,000 for it. Are you satisfied with that?' I said : * Yes; I am satisfied with anything what is right’ ‘ But,’ said he, ‘I have got some bills against the property. You step up in the morning, and I will let you see the bills.’ I said: “You have a list of them? We will see what they are.’ He said, ‘You come up in the morning, and get the bills.’ I went up the next morning. He handed me different bills. I said, ‘ I don’t propose to have no such, thing as that going on here, — $100 for my sisffer, $250 for my uncle Charles.’ I said, ‘ What has my uncle Charles to do with the property ?’ He (Charles) was going to give it to him anyhow. I said, ‘ I want $1,500 of it in cash, or I don’t want any tiling.’ That was the last I had to do with him. He said he would not pay me a dollar.

No denial of this evidence was made, or attempted to be made, by the defendant Charles W. Denike, and plaintiff was not even cross-examined by defendant’s counsel. Here was plainly a case where the mother confided in her son to do equal justice towards her surviving children, and it is a fair conclusion that the defendant accepted the conveyance on that understanding. He has admitted it by failing to deny his brother’s evidence as to the purposes of the deed from his mother to him, and also by offering to make a settlement wit]i plaintiff, provided he would accept defendant’s bills for disbursements and charges against the property ; and it would be a gross injustice now to allow him to invoke the statute as a bar to the relief which the plaintiff now claims. We think, on all the evidence in this case, that the premises in question were conveyed by Sarah Ann Denike to the defendant Charles W. Denike on the implied trust that he would convey one-third thereof to the plaintiff, that he accepted said conveyance on such conditions, and that equity will intervene to compel the performance of the trust and to prevent a fraud.

We think, however, that the referee appointed to take an account of the rents since December 10, 1888, erred in his conclusion that the plaintiff was entitled to a personal judgment against both Charles W. Denike and Mary A. Denike for one-third of the net rents. There was no evidence that the defendant Mary A. Denike ever received any of the rents of the property, and in fact? the premises were not conveyed by her husband to her until 1893; and the final judgment to that effect, entered on the report of the referee, is, in that regard, erroneous.

The judgment against the defendant Charles W. Denike should be affirmed, with costs, but the personal judgment against the defendant, Mary A. Denike, for $1,579.40, should be reversed, and a new trial ordered as to her personal liability for any portion of the rent of the premises, unless plaintiff stipulates to reduce the personal judgment against her to $304.97, being the amount of the costs of the action, in which event the judgment so reduced is affirmed against her, but without costs.


author: McAdam, J.

text:
    Grand Lodge Knights of Pythias, Pl’ff, v. Manhattan Savings Institution, Def't.

      (New York Superior Court, Special Term,

      Filed June, 1895.)

    Supplementary proceedings — Order for payment.
    An order in supplementary proceedings, directing a depositary of money belonging to the judgment debtor to pay it in satisfaction of the execution, does not relieve him from liability for such money, where another party, before such order was made, became the owner of the money and notified the depositary of the change of title.
    Demurrer to the complaint.
    The plaintiff was incorporated under and by virtue o£ chapter 376 of the Laws of 1880, with power to institute subordinate lodges. The objects were the promotion of friendship, charity and benevolence, and to aid members in case of sickness or death. The act declares that all funds raised to further these purposes shall be exempt from process against the grand or any subordinate lodge, and that upon the dissolution or suspension of any subordinate lodge, all the funds, etc., to its credit shall belong to and become the property of the grand lodge. In 1894, the plaintiff granted a charter to certain members, whereby they were constituted a lodge of the order under the name of “Independence Lodge.” This lodge deposited certain moneys with the defendant, and received from it a bank book numbered 136,838, in which the amounts of the deposits were entered. Attached to the book is an extract from the charter and bylaws of the defendant, providing that no person shall have the right to demand any part of his principal or interest without producing such book, that the payments may be entered therein, and that sixty days’ notice must be given before the money can be withdrawn. On April 10, 1895, there was on deposit in defendant’s bank $253.93. On the 23d of the preceding month Independence Lodge was duly suspended, whereupon the bank book, etc., were surrendered to the plaintiff, which has since had possession thereof. On April 1, 1895, the plaintiff served notice on the defendant, informing it of the suspension of Independence .Lodge, that the bank book had been delivered over to the plaintiff, and that plaintiff owned" the funds on deposit as aforesaid. One Hirsch recovered a judgment for $69.72 against Independence Lodge, docketed it, and issued an execution to the sheriff. Supplementary proceedings were instituted, and on April 6th, the assistant receiving teller of the defendant appeared and testified that Independence Lodge had on deposit to its credit $253.93. On April 10th a judge of the court of common pleas made an order directing the defendant to pay out of said moneys $103.21 to the sheriff on account of the execution and $30 costs in said action. The defendant complied with this order on the following day, and now claims that the payment made thereunder is binding on the plaintiff. The plaintiff was not notified of said proceedings, and now sues to recover the entire deposit. The defendant demurs, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

      J. C. D. La Mare, for pl’ff; Hoyt & Schell, for def't.
   McAdam, J.

— Upon the conceded facts the money on deposit became the property of the plaintiff prior to April 1, 1895. The defendant was on that day sufficiently notified of the change of title; and, as a consequence, the payment on April 11, pursuant to the order made by the common pleas judge, was in the defendant’s own wrong, and not chargeable to the plaintiff. Richardson v. Ainsworth, 20 How. Prac. 521; Muir v. Schenck, 3 Hill, 232 ; Schrauth v. Bank, 86 N. Y. 390 ; Wright v. Cabot, 89 id. 570 ; Bank v. Pugsley, 47 id. 368; Beebe v. Goodenough, 3 Hun, 73 ; Roy v. Baucus, 43 Barb. 310.

The order taken by the judgment creditor should have been in the language of section 2446 of the Code, “ permitting ” the defendant to pay to the sheriff. It can have no greater effect. The defendant might then have availed itself of the option, and, by declining, put the creditor to his remedy by action.

Section 2447, which authorizes a “ direction ” to pay, applies only to moneys in the hands of the judgment debtor. The provision therein directing delivery over by a third person applies to articles of personal property other than money, capable of delivery, and to which the title of the debtor is undisputed.

If the defendant had called the.attention of the judge who made the order to the fact that the plaintiff had possession of the bank book and claimed the deposit, he would no doubt have modified it by making the order permissive instead of mandatory. At all events, the order furnishes no protection to the defendant, and the payment by it to the sheriff must be considered as voluntarily made. The fact that the notice did not specify in detail how the money on deposit became the property of the plaintiff is immaterial, for the rule is that where a party has notice sufficient to put him upon inquiry, he is chargeable with such knowledge as the inquiry would have disclosed if it had been properly made. Bienenstok v. Ammidown, 59 St. Rep. 471.

It follows that the plaintiff is entitled to judgment on the demurrer, with costs.


author: Gildersleeve, J.

text:
    Jennie E. Kelly, Pl’ff, v. Daniel J. Kelly, Def’t.

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    1; Pleading — Answer—Sham.
    A pleading on information and belief should not be stricken out as sham, unless it clearly appears that there could not have been any information or belief, and the defense must be false, in the sense of being a mere pretense, set up in bad faith and without color of fact.
    2. Same — Definite.
    If the court, looking at the pleading, can see with ordinary certainty the meaning of the allegation, and the defense intended to be set up thereby, the pleading will be held sufficient to resist a motion to make it no more definite.

      3. Same — Bill of particulars.
    Where a party seeks to he fully apprised of the particulars or circumstances of time and place of the matters set forth in his adversary’s pleading, a hill of particulars is the appropriate remedy.
    Motion to strike out a defense of the amended answer, as sham, and to make more definite and certain a portion of the second further and separate defense set up in the answer.

      W. L. Cannon, Jr., for the motion; Arthur C. Butts, opposed.
   Gildersleeve, J.

. -This is a motion (1) to strike out the third defense of the amended answer, as sham; and- (2) to make more definite and certain a portion of the second further and separate defense set up in said amended answer. The defense which is claimed to be sham sets forth a former marriage of the plaintiff, stated to be álleged on information derived from the plaintiff herself. The rule is well established that a pleading on information and belief should not be stricken out, as sham, unless it clearly appears that there could not have been any information or belief (see Webb v. Foster, 45 N. Y. Supr. Ct. 311), and that the defense must be false, in the sense of being a mere pretense, set up in bad faith, and without color of fact (see Kiefer v. Thomass, 6 Abb. Prac. [N. S.] 42). It does not seem to me that the motion herein meets the requirement of this rule.

With regard to the motion to make more definite and certain the allegation that “ during the year 1894, prior to the 19th day of December, 1894, the plaintiff, without the connivance, consent, privity, or procurement of this defendant, had sexual intercourse with some man or men whose name or names are at the present time unknown to this defendant, but that such sexual intercourse took place in the city of New York,” by stating the places and dates when and where such sexual intercourse was had. It seems to me that plaintiff has mistaken her remedy. Instead of making this motion she should have applied for a bill of particulars. If, looking at the pleading, the court can see with ordinary certainty the meaning of the allegation, and the defense intended to be set up thereby, the pleading will be held sufficient to resist a motion to make it more definite. See Cook v. Matteson, 33 St. Rep. 497. A bill of particulars is the appropriate remedy where a party seeks to be fully apprised of the particulars or circumstances of time and place of the matter set forth in his opponent’s pleadings. See Durant v. East River Electric Light Co., 18 St. Rep. 934. For the reasons above stated the motion must be denied, with $10 costs, to abide the event.

Motion denied, with $10 costs, to abide event.


text:
    Kate Trimble, by Guardian, etc., Pl’ff, v. Michael Kilgannon, Def’t.

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    Parties — Poor person — Infant.
    The provisions of section 458 of the Code apply to an infant plaintiff, suing by her guardian ad litem.

      Motion for leave to sue as a poor person, and motion for an ■order compelling plaintiff to give security for costs.

      Howe & Hummel, for pl’ff; Louis J. Grant, for def’t.
   Gildersleeve, J.

— The action is brought to recover damages lor a breach of promise to marry. The plaintiff is an infant under the age of twenty-one, and sues by her guardian ad litem. The defendant makes a motion for an order compelling plaintiff to give security for costs, on the ground that she is ail infant whose guardian ad litem has not given such security. See Code, § 3268, subd. 5. At the same time, the plaintiff makes a motion, under section 458 of the Code, for leave to sue as a poor person. There can be no question that section 458 of the Code, providing that “a poor person, not being of ability to sue, may apply, by petition, to the court for leave to prosecute as a poor person,” applies to infants as well as adults. See Tobias v. B. & S. A. Railroad Co., 39 St. Rep. 183; Harris v. Mut. L. Insurance Co., 10 N. Y. Supp. 474. As it is in the discretion of the court to allow an action to be prosecuted in forma pauperis, an infant plaintiff, suing by her guardian ad Hierre, may be permitted to sue in such form, in spite of the provisions of subdivision 5, § 3268, of the Code, to the effect that defendant in such case may require security for costs. See Harris v. Insurance Co., supra. These two motions are made at the same time, and the facts necessary to justify each of the orders asked for are shown. In such case it seems to me that the motion for leave to prosecute in forma pauperis should be granted, and the motion for security tor costs should be denied. See Hotaling v. McKenzie, 7 Civ. Proc. R. 320. Ho costs of motion.

Ordered accordingly.


text:
    The People ex rel. William J. Hoffman, Pl’ff, v. Charles B. Tedcastle, Def’t,

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    Mandamus — Peremptory writ.
    The premptory writ of mandamus can only issue where the facts are undisputed, and it is within the power of the person, to whom the writ would issue, to perform the act.
    Application for a peremptory writ of mandamus to compel a transfer agent of a foreign corporation to exhibit to relator the transfer book and a list of the stockholders of the company.

      Welch & Daniels, for relator; Holmes & Adams, for resp’t.
   McAdam, J.

The defendant is the Hew York transfer agent of the Oregon Improvement Company, a foreign corporation created under the laws of Oregon, and doing business at Portland in that state. The relator, a stockholder of the company, requested the transfer agent to exhibit to him the transfer book and a list of the stockholders. Laws 1892, c. 688, § 53; Laws 1842, c. 165, §§ 1, 2; In re Sage, 70 N. Y. 220; In re Martin, 62 Hun, 557; 42 St. Rep. 409 ; People v. Paton, 20 Abb. N. C. 172, 195 ; Ross v. Wigg, 34 Hun, 193. The defendant declined, upon the-ground that the books had been sent to the home office in Oregon, and, not being under his control, he could not comply. The truth of the reason given for noncompliance with relator’s request is-substantiated by the defendant’s affidavit. In view of these facts,, the peremptory writ of mandamus applied- for cannot issue. Code, § 2070. The case relied on by the relator, People ex rel. Del. Mar v. St. Louis & S. F. R. Co., 44 Hun, 552; 7 St. Rep. 415, does not. authorize a reference as to a disputed fact, but only where further information is required. The writ can only issue where the facts-are undisputed, and it is within the power of the person to whom the writ would issue to perform the act. People v. Hayt, 66 N. Y. 607; People v. Rome, W. & O. R. Co., 103 id. 95; 3 St. Rep. 39 ; People ex rel. McMackin v. Board of Police, 107 N. Y. 235 ; 11 St. Rep. 412 ; People ex rel. Nicholls v. New York Infant Asylum, 122 N. Y. 190; 33 St. Rep. 296 ; People v. Northern Pac. R. Co., 50 N. Y. Supr. Ct. 457; Kennedy v. Chicago, etc., R. Co. 14 Abb. N. C. 326; People v. St, Louis, etc,, R. Co., 19 id. 1; People v. Paton, 20 id. 172; People v. St. Louis & S. F. R. Co., 47 Hun, 543; 14 St. Rep. 885. Where, on the motion,, opposing affidavits are read which conflict with the averments of the moving affidavits, notwithstanding which the relator demands a peremptory writ, this is equivalent to a demurrer, and the questions as to the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true. People ex rel. S. C. Sav. Bank v. Cromwell, 102 N. Y. 477 ; People ex rel. Superintendant of Poor v. Board Sup’rs, St. Lawrence Co., 103 id. 541; 4 St. Rep. 229. In such case the court will take the facts, so far as disputed, as they appear in the opposing affidavits. People v. Richards, 99 N. Y. 620. Where the facts are-disputed, only an alternative writ can issue (47 Hun, 543 ; 14 St. Rep. 885), and the issues raised thereon must be determined by a jury (Code, § 2083), unless a jury trial is waived or a reference is directed by consent (Id.) The election .of directors takes place June 17th, and an alternative writ would be .of no service to the relator. He may take one if he desires. Motion for peremptory writ denied, without costs. Motion denied, without costs.


author: Davie, S.

text:
    In the Matter of the Application by W. J. Manley, for Letters of Administration, with the will annexed, of Nathaniel Manley, deceased.

      (Surrogate’s Court, Cattarugus County,

      Filed May, 1895.)

    Éxboutob — Qualification.
    A person is not disqualified by drunkenness, improvidence or want of understanding, from acting as executor, unless he lacks intelligence, or is. an habitual drunkard.
    Application for letters of administration with the will annexed.

      George Straight, for petitioner; V. C. Reynolds, for contestant.
   Davie, S.

— Nathaniel Manley died at the town of New Albion February 1, 1895, leaving a will dated July 10, 1882, which was admitted to probate April 10,1895. The executor named in the will having renounced, W. J. Manley, a son of testator, made application for letters of administration with the will annexed. The testator left four children, viz. the petitioner, Emmett F. Manley, and Jennie Woodward, all residents of Cattaraugus county, and Martin H. Manley, residing ifi Nebraska, all of whom are residuary legatees; none--of the other children seek to be appointed, but objections are filed on behalf of the son Emmett F., alleging that the petitioner, in consequence of drunkenness, dishonesty, and improvidence, is not qualified to act.

The statute determines the order of priority in cases of administration with the will annexed; those first entitled are “ one or more of the residuary legatees who are qualified to act as administrators.” Code Civil Proc.' § 2643, subd. 1. This order of priority is not affected by section 2693 of the Code of Civil Procedure, which provides that where all the executors are incapable letters shall be issued as in case of intestacy. In re Place, 4 St. Rep. 533,: Id., 105 N. Y. 629. The petitioner, being a residuary legatee, and the only one applying, is legally entitled to appointment if" qualified to act, and his rights cannot be defeated unless it is múdete appear that he is disqualified to the extent contemplated by the-statute, for letters of administration cum testamento annexa can only be denied to one otherwise entitled for cause constituting a statutory disqualification. Id., 4 St. Rep. 533. The nature of such disqualification is defined in section 2661, Code of Civil Procedure, as amended by the Laws of 1893, as follows: “Letters of administration shall not be granted to a person convicted of an infamous crime * * * nor to any one who is adjudged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding.” The courts, in construing this statute, have determined that not every degree and grade of the vices and defects mentioned disqualify. In Emerson v. Bowers, 14 N. Y. 449, the court of appeals says: “All departures in conduct from the principles of rectitude, including all abuses of trust, are unwise and inexpedient, and therefore, in a certain sense, improvident, but they do not constitute the kind of improvidence which the legislature had in view in these enactments; a very careful, shrewd, and money making-person may be guilty of negligence or abuse in a fiduciary capacity, but such a person is not improvident in the sense of the-statute. The words with which the term is associated, ‘drunkenness,’ ‘want of understanding,’ are of some importance in arriving at its true construction ; the term evidently refers to habits of mind and conduct which become a part of the man, and render him generally and under all ordinary circumstances unfit for the trust or employment in question.” See opinion, page 454, 14 N. Y., Emerson v. Bowers. In the case of Coope v. Lowerre, 1 Barb. Gh. 45, it appeared that the applicant had shortly before applied for a discharge under the insolvent act; that he was grossly negligent in the management of his property and affairs, and in contracting debts, and in indorsing for parties without responsibility ; that he had had a verdict against him in an action for seduction ; and other serious imputations were made against his moral character. But the chancellor, upon appeal from the decision of the surrogate appointing the applicant, held that no degree of moral .guilt or delinquency would be sufficient to exclude him, unless he had been actually convicted°of crime. This case is cited and approved in Emerson v. Bowers. It has been held that vicious conduct, improper and dishonest acquisitions of property, and even loose habits of business, did not constitute “improvidence” within the meaning of the statute ; nor the fact that the petitioner was indebted to the estate. Coggshall v. Green, 9 Hun, 471. Improvidence and lack of understanding, in order to disqualify, must .amount to a lack of intelligence. Shilton's Estate, 1 Tuck. 73. Habits of intemperance do not disqualify, unless they amount to habitual drunkenness in the legal sense of the term. Elmer v. Kechele, 1 Redf. Sur. 472.

In the case at bar, the evidence shows that the applicant is addicted to some extent to the use of intoxicating liquors ; that upon two occasions during the past ten or twelve years his conduct indicated intoxication. It was also alleged that the applicant had upon one occasion been guilty of political dishonesty in having received money to aid in defeating the election of a candidate of the party to which he belonged, but this charge was not sustained by the evidence. On the contrary, a number of substantial business men from the locallity where the applicant had resided and been ■engaged in business for many years testified quite distinctly to his integrity and business capacity. The witness McCabbin testified that during the past few years he had transacted business with the ••applicant to the extent of $300,000 ; and, as he says, quoting from his evidence, ‘‘ I have always found him a strictly honest man, •and a man of intelligence; I have never discovered anything in his dealings with me but what was strictly honest.” Witness 'Carroll testified that he had been well acquainted with the applicant for many years, at one time a partner with him in business, :and had had extensive business relations with him since 1885. He .says : “During that time I have never seen anything dishonest on his part; always found him square and honorable. He has been president of the village of Cattaraugus, a member of the school Board and supervisor of the town of New Albion within the past few years. ” The testimony of several other witnesses, having .•ample opportunities to judge of the applicant’s habits and business practices, is of the same import. In view of this evidence and of decisions cited, a determination that the applicant is disqualified under the statute would be entirely unsustained by authority. A -decree will accordingly be entered appointing the applicant administrator with the will annexed, and directing the issuing of letters to- him upon his filing the proper bond. Ordered accordingly.


author: Goff, R.

text:
    The People, Pl’ff, v. Quong Kun, Def't.

      (Court of General Sessions, New York County,

      Filed June, 1895.)

    Witness — Child—Ckiminal law.
    Where a child is, by reason of her youth and immature understanding, incompetent to give either sworn or unsworn testimony on the trial of a criminal action, her statements, made out of court though in the presence of the defendant, are also incompetent.
    Quong Kun, a Chinese laundry man, was indicted for a criminal assault upon Maggie Blaclcmer, a child five years old, on the evening of January 31st, 1895. The alleged criminal assault was not discovered until a month later, when, the child becoming ill, she told her story to her mother. Quong Kun was arrested, and identified by the child. In his presence, and that of her mother and the police officer who made the arrest, she told the story of the alleged criminal assault. On the trial the child was called by the prosecution as a witness, but the court, after examining her, refused to admit her testimony, on the ground that slm was of such tender years and such immature understanding that, in the opinion of the court, it would not be safe or proper to take the statement of the child, either sworn or unsworn. The prosecution then proved the child’s statement, made in the presence of her mother, of defendant, and of the police officer who made the arrest, as to the assault, and introduced the testimony of two physicians in further corroboration of her statements. This was all the evidence for the prosecution. Defendant’s counsel then moved that the court advise the jury to acquit defendant, on the ground that there had been no evidence as to the fact of a criminal assault, and that, therefore, the evidence that had been introduced in corroboration was of no value.

      Robert Townsend, Asst. Dist. Atty., for the People; Robert H. Racey, for deft.
   Goff, R.

— The crucial test in this case, in my opinion, would be the testimony of the injured child. If there were testimony from her, in this case, of a kind and quality to establish a case, prima facie, against the defendant, then it might be contended by the district attorney that he had produced testimony sufficiently corroborative of her testimony to justify the court in submitting the case to the jury. But there is no such testimony in this case, because the court felt bound, in conscience, in view of the extreme youth and utterly immature understanding of the child, to exclude her testimony, whether sworn or unsworn. The district attorney has cited in support of his contention that the case should be submitted to the jury the ruling of another judge of this court" in a homicide case. In that case the learned court held that a child, an important witness against the defendant, was incompetent to testify in court, but allowed in evidence declarations of the child made out of court, and in the presence of the defendant. This ruling was sustained by the court of appeals. I do not intend to depart in the slightest degree from the law laid down by the highest court of our state, which not only commands our obedience to its rules, but our most profound respect, but in this case the responsibility' is-placed upon me to decide as to the competency of this child as a witness. Having carefully examined the child, I decided! that she was incompetent as a witness, either under oath or not under oath. Therefore, there is no testimony from the child in this case, I having assumed the responsibility of excluding it. Having decided that the child is of too tender years, and of insufficient understanding to testify in court, either sworn or unsworn, on what principle of law or logic can the declarations of that child out of court be given in testimony ? I confess, that, in my opinion, it would be against law and logic, therefore, I disregard the statement of the child made in the presence, of the defendant, and, considering her incompetent to give any statement in this court, I consider her equally incompetent to have any statement made by her out of court introduced in evidence. Striking her testimony from the record in this case, what remains? Absolutely nothing but a train of suspicious-circumstances, distressing "in . their nature, and distressing to the sense of mankind. . Nevertheless, this is a court of law, and one of the most wise and just provisions of our law is that this defendant is entitled to all the rights and all the immunities that a native-born resident of this community is entitled to. There is-not a different law for the Ohinamen and a different law for the American, in our state. No matter what we may feel as to certain habits and moral obliquities of a race, it is our duty, in & court of law, to decide questions of law according to the law. There is not sufficient legal evidence in this case, in my opinion,, to warrant me in submitting it to this jury, and, therefore, I advise the jury to acquit this defendant.


text:
    The People, Pl’ff, v. William R. Blakeman, Def’t.

      (Court of General Session, New York County,

      Filed June, 1895.)

    JtUMIHAL LAW — LESS DEGBEE.
    Though the jury may find the defendant guilty of a less degree of crime than is charged in the indictment, they cannot find him guilty of a. less degree than is shown by the evidence.
    William R. Blakeman, John McKenna and William Mack were indicted for robbery in the first degree, in robbing John McGinn of a silver watch. ' Blakeman was tried separately, and the jury returned a verdict of attempted robbery in the third degree. Mc-Ginn, the complainant, testified, ip substance, that Blakeman and! McKenna held his arms while Mack stole his watch, and then the three men ran away, but were pursued and captured. Counsel for defendant moved for a new trial, on all of the statutory grounds, —especially on the ground that the verdict was contrary to the evidence and to the weight of the evidence, and that the evidence-established against Blakeman, if it established anything, the commission of the crime of robbery in the first degree, or no crime whatever.

      Robert Townsend, Asst. Dist. Atty., for the People; William J. A. Caffrey, for def’t
   Goff, R.

— In reference to your contention, Mr. Oaffrey, that the verdict is against the evidence, and inconsistent with the evidence, I desire to say that it is true that the law provides that a jury may find a defendant guilty of a lesser degree of crime than that charged in the indictment. But that provision of the Code of Criminal Procedure does not, in my opinion, •curtail the rule of common law, or in any way interfere with its operation, that, if a defendant be found guilty, he should be found guilty in accordance with the evidence introduced. This defendant was indicted for robbery in the first degree. The jury must have believed the evidence introduced to substantiate that crime, or they could not have convicted him of any degree of crime. The evidence was, substantially, that the defendant seized hold of the complainant, and held him, while Mack stole the complainant’s watch. In rendering a verdict of guilty of any degree of crime, the jury must have believed the evidence of the complaining witness as to the robbery. The defense interposed is that of an alibi. The defendant testified in his own behalf, and McKenna, one of his co-defendants, also testified in support of the alibi. The testimony of the defendant and his co-defendant was that the defendant was in a liquor saloon, some blocks away, when the robbery was committed. If the jury believe their testimony, it was their duty to acquit the defendant. If, on the other hand, the jury disbelieved their testimony, and believed the testimony for the people, it was equally their duty to convict the defendant, and to convict him of robbery in the first degree, and of no lesser , degree of crime whatever. I do not consider it within the duty of a juror to swerve one iota from what he considers his just verdict. This matter of jurors feeling arouud, as it were, for common ground upon which to come to an agreement, practically takes from the court the power of imposing the penalty prescribed by law. It is an arrogating to themselves, by jurors, of the right to fix and impose sentences. Thai is the only logical deduction that can be drawn from it. Jurors retire to their room, and, if they do not bring a verdict, when they believe that a defendant is guilty, on the evidence, and according to the crime charged in the indictment, they sometimes set to work to see if they cannot come to an agreement by agreeing upon a conviction of a lesser degree of crime. This means that some jurors who stand up against a verdict of guilty of the crime charged, in accordance with the evidence, are willing to bring in a verdict of a lesser degree of crime, so that the defendant may not receive the severe punishment which would be meted out to him if he were found guilty of the higher degree of crime charged. I have repeatedly and explicitly told juries that it is their duty to find a verdict upon the evidence, and that they are not to concern themselves at all as to the disposition of the defendant by the court, of the consequences that may follow their verdict. In this case, in my opinion, the verdict against the defendant cannot be supported in reason. There may be warrant for it in the letter of the law, but my opinion is that the spirit, of the law is that a verdict must be in accordance with the evidence; and, if the evidence established against the defendant the commission of any crime whatever, it justified his conviction of robbery in the first degree, and of nothing else. I cannot understand by what rule of reason or of logic this jury could have come-to this verdict. There is but one conclusion that I can draw from it, and that is that they filed the charge down by degrees, — robbery in the first degree, robbery in the second degree ; — and then,, passing by anrattempt to commit robbery in the first degree, and an attempt to commit robbery in the second degree, they reached robbery in the third degree; and then, applying the file again,, they-came to an attempt to commit- robbery in the third degree, the very lowest grade of crime of which it was possible to convict-this defendant under this indictment. So, the jury passed through three gradations of crime to reach their verdict, which was evidently a compromise verdict. Some of the j urors may have felt it to be their duty to find the defendant, on the evidence, guilty of robbery in the first degree, while other jurors must have found it in their consciences not to find him guilty of any crime whatever; and, as a sort of compromise, they constructed this verdict, which, has no foundation in the evidence in this case. The defendant was either at the scene of the robbery, or he was not there. If the-jury believe that he was there, then it was their duty to convict him of robbery in the first degree. If they believed that he was-not there, it was their duty to promptly acquit him. Therefore, because this verdict is against the law, against the evidence, and against reason, I set it aside, Mr. Oaffrev, and grant the defendant a new trial.


author: Lawrence, J.

text:
    Alfred H. Lorton et al., Pl’ffs, v. Mayor, Aldermen and Commonalty of the City of New York, Def’t.

      (Supreme Court, New York Special Term,

      Filed June, 1895.)

    Wharf — New York City.
    - The city of New York, under a contract to maintain a slip in consideration of the landowner surrendering the right to whafage so long as suck slip shall he kept open, is not, in order to preserve its rights under suck surrender, compelled to maintain the original basin, so long as the basin maintained affords to the owner facilities equal to the original basin.
    Action by Alfred H. Lorton and others against the mayor,, aldermen, and commonalty of New York.
    On the 20th day of February, 1804, the mayor, aldermen, and commonalty of the city of'New York granted to Lewis Lorton, the predecessor in title of the plaintiffs, in the usual form of water grants, the strip of land under water, fifty-five feet six inches in width, in front of his upland, and extending some 210 feet to West street. At that time Lorton was, as recited in the grant, the owner of the land above and adjoining the original high water mark, bounded on the north by Spring street, then called “Brannon Street,” and extending southerly from Spring street, fifty-five feet six inches. The grant contained the usual covenants, and the grantee was, whenever required by the grantor, to build and maintain West street seventy feet wide along the westerly end of the premises, and Washington street fifty feet wide through the premises. He was also to build and maintain a street of twenty-five feet in width along the northerly side of the premises, from high water mark to West street, this street being now absorbed into and forming a part of the lower end of Spring street. He was also to have, use, enjoy, take, and hold forever “all manner of wharfage, cranage, advantages, and emoluments growing or accruing by or from the said wharf or street of seventy feet in-breadth, called West Street,’ fronting on the said North river, opposite to the said premises hereby granted, and every part thereof.” On the 1st of March, 1804, an agreement was entered into between Lewis Lorton and the mayor, aldermen, and commonalty of the city of New York in which it was recited thai-on the 20th day of February, 1804, the city, in consideration of the rents and covenants therein contained, on the part of said Lorton, had granted and conveyed to him the water lot, vacant ground, and soil underwater, to be made land and gained out of the North or Hudson river, situate and being between high water mark and a certain new street of seventy feet in breadth, to be laid out and made-fronting on the said North and’ Hudson river, called “ West Street,” opposite to and adjoining other land belonging to the said Lewis Lorton, on the southerly line of Brannon street, in the Eighth ward of the city of New York; bounded 'northerly by Brannon street and a certain wharf or street of twenty-five feet in-breadth, therein mentioned, to be made on the southerly side of the said slip, below Washington street, called “Brannon Street-Slip easterly, at high-water mark, by other land belonging to said Lewis Lorton ; southerly, by other land and vacant ground belonging to or granted or to be granted to Anthony Lispenard,, Esq.; and westerly by the said intended new street, to be called “West street,” containing in depth on both sides, from high to low water mark, inclusive of Washington street, which crosses through the same, sixty feet; and from thence to the said new intended street, to be called “ West street,” 210 feet, be the same more or less, and in breadth, at high and low water mark, and also on the-said new intended street, called “ West Street,” fifty-five feet and six inches. The agreement further recites that by said water grant the city further covenanted and agreed to allow said Lorton to have and use and take all the wharfage, cranage, advantages,, and emoluments growing or accruing by or from the said wharf or street, seventy feet in breadth, called “ West Street.” It also recites that whereas, since the making and executing of the said grant, the said parties of the first part, by and with the consent of the said parties of the second part, have directed and made, or caused to be sunken and made, a certain bulkhead or wharf of 200 feet in length fronting on the said river, at the westerly end or foot of Brannon street, for the purpose of forming a public slip or basin, which said wharf extends across the westerly end of the ■said water lot, by the said indenture granted to the said party of the second part, on the easterly side of the said intended new street, called “West Street,” whereby the right of the said Lewis Lorton to receive and take the wharfage and cranage in the said indenture mentioned will become incompatible with the plan and design of the said parties of the first part, and disadvantageous to the said city, it is therefore agreed and declared and covenanted by the said Lewis Lorton, for himself, his heirs and assigns, to and with the mayor, aldermen, and commonalty of ■ the city of New York and their successors, that until the said intended new street, called “West Street,” shall be made and formed as aforesaid, and from thence afterwards, so long as they shall think it advisable to reserve and keep open the said public slip or basin, they, the said mayor, aldermen, and commonalty, and their successors, shall and may have, use, etc., all such wharfage, cranage, advantages, and emoluments as shall arise or accrue by or from the said public wharf or pier across the westerly end of the said premises, on the easterly side of West street, and also by or from the said wharf or street, to be called “West Street,” opposite to the said premises, so long as the same shall be reserved as aforesaid, anything or any right of said Lewis Lorton unto such wharfage and cranage in the said indenture mentioned to the contrary notwithstanding. By the said agreement Lewis Lorton also covenanted to cause to be made .and finished a street of at least1 twenty-five feet in breadth along the easterly side of the said bulkhead or wharf, across the said premises, the whole breadth thereof, and that the said wharf or street of twenty-five feet in breadth shall be and remain a public street or wharf, etc.
    In the stipulation which was filed upon the trial of this action it was agreed that between the years 1825 or 1830 the wharf or street called “West Street,” described in said indenture of February 20, 1804, and in said agreement of March 1, 1804, was built; that about the same time two piers were built by the defendant extending from West street into the Hudson river, so that from the year 1830, or prior thereto, there existed a public slip or basin 200 feet in width from north to south, maintained, kept open, and reserved by the defendant, the northerly and southerly sides of which were the said two piers above mentioned, and the easterly side or end thereof (200 feet in width from north to south) was the wharf or street of seventy feet in breadth, called “ West ■street,” and that the fifty-five feet and six inches in length of said wharf or street described in the said grant to Lewis Lorton, February 20, 1804, in front of the premises granted to him, formed a part of the said easterly side or end of the said slip or basin, and the said slip or basin was the same public slip or basin mentioned in the agreement of March 1,1804. It is also stipulated that during the whole of said period of time from the building of the wharf or street to some time between the 4th day of May, 1874, and the 30th day of April, 1875, the said public slip or basin was kept open and reserved by thé defendant, and the said fifty-five feet and six inches of said wharf or street formed a part of the side of said public slip or basm; that during all that period the mayor, aldermen, and commonalty of the city of New York, pursuant to the agreement of March 1, 1804, have at all times been in the receipt and enjoyment of the wharfage, etc., growing or accruing from the said fifty-five feet and six inches of said wharf or street called “West Street,” and that said Lorton and his successors duly fulfilled, observed, and performed the covenants, etc., on their part to be performed by the said indenture and by the agreement. The stipulation then recites the acts of April 18, 1871, and the 16th day of May, 1872, creating a department of docks in the city of New York, which was authorized to acquire for the purpose thereof, and in the name of and for the benefit of the corporation of the city of New York, any and all wharf property in said city to which the corporation then had no right or title, and any rights, terms, easements, and privileges pertaining to any wharf property, and any lands under water and uplands in the said city not owned by the corporation. It is further stipulated: That the mayor, aldermen, and commonalty of the city of New York, between the 4th oE May, 1874, and the 30th of April, 1875, pursuant to a plan adopted under said acts by the commissioners of the sinking fund, demolished and removed the said two piers built by it extending from West street into the Hudson river, forming the northerly and southerly sides of the said public' slip or basin, and built a stone bulkhead or river wall parallel to and 180 feet westerly from West street, across the whole front of the said public slip or basin, including the front of said grant to Lewis Lorton, and also filled in with earth or solid filling the intermediate space of 180 feet or thereabouts between West street and the said stone bulkhead or river wall. That subsequently thereto the defendant built a certain pier 100 feet in width and 583 feet or thereabouts in length, commencing at the outer or westerly side of the said bulkhead wall, and extending westerly into the Hudson river, bounded by parallel lines, the northerly line of which pier was about forty-five feet southerly from the southerly line of Spring street, extended westerly, and which pier has since been and is now known as •“ Pier New No. 34, North River also a certain other pier, sixty-two feet in width and 595 feet or thereabouts in length, also commencing at the outer or westerly side of the new bulkhead wall, and extending westerly into the Hudson river, bounded by parallel lines, the southerly line of which pier is 142 feet northerly from,, the northerly line of the pier first mentioned, and which second pier has since been and is now known as “ Pier New No. 35, North River.” That the space between the said pier west of the said bulkhead wall has been used as a slip or basin for vessels, the rents and income of which have been collected by the defendant. It is further stipulated that all these acts were done without the consent of the plaintiffs or their predecessors in title, and without any proceedings to condemn or acquire the rights claimed by them. It is also stipulated that the defendants have ever since maintained the said stone bulkhead or river wall in the same position, so that all persons have been deprived of the beneficial uses of said property in its former condition, and it has been at all times since the acts last before mentioned, and. is now, impossible for any one to realize any wharfage, cranage, advantages, or emoluments from the said wharf or street called “West Street,” as formerly-existing, or that the same should be used for commercial purposes as a wharf by any one.

      Frank A. Irish, for pl’ffs ; Francis M. Scott, Corp. Counsel, and Charles Blandy, for def't.
   Lawrence, J.

— This action is brought to obtain injunctive relief,- it being contended that the defendant has been guilty of a continuing trespass, and a continuing nuisance, by reason of the erection of the piers and the stone wall aforesaid, preventing the exercise by the plaintiffs of their alleged right to collect wharfage at West street, for that part of the same extending fifty-five feet and six inches southerly from Spring street. It is contended by counsel that the plaintiff’s have a right to maintain this* action, under the cases of Langdon v. Mayor, etc., 93 N. Y. 129 ; Williams v. Mayor, etc., 105 id. 429; 7 St. Rep. 529, and Kingsland v. Mayor, etc., 110 N. Y. 569 ; 18 St. Rep. 701. I am of the opinion, however, upon the foregoing statement of facts, that neither of these cases is an. authority in the plaintiffs’ favor in this action. Although, the right to collect wharfage in-front of the premises described in the water grant of February 20, 1804, was given to Lewis Lorton, by the agreement of March 1, 1804, Lorton covenanted that the mayor, aldermen and commonalty of the city of New York, and their successors, until West street should be made and formed, and as long afterwards as they should think it advisable to reserve and keep open the said public slip or basin, should use and take to themselves all the wharfage or cranage, etc., which should arise from the wharf or pier across the westerly end of said premises on' the easterly side of West street, and also from the said wharf or street to be called “West street,” so long as the same should be reserved and kept open as a public slip'or basin. In this case, as a matter of fact, while under the plan approved by the commissioners of the' sinking fund, West street has been widened, so that it is 250 feet in width, instead of seventy, and the slip has been extended by reason of the erection of the new piers, no access to the plaintiff’s premises on the easterly side of West street has been interfered with. There is a public street still in front of him, and also a public basin much more advantageous, as matter of fact, to his premises, than the old basin and the old street, which have been replaced by the improvements. In the cases before referred to, the right of the landowners fronting on West street to collect wharfage had been taken away without compensation having been made therefor. In this case, Lorton surrendered all his right to collect wharfage while the public street and slip in front óf his premises were kept open. I do not think that the agreement in question confines the city to maintaining the identical piers, bulkheads and structures which existed in front of Lorton’s premises, so long as they left him access to the river front, and maintained a slip as large or larger than the slip which existed when the agreement of March 1, 1804, was made. Even if a technical breach of the agreement of March 1, 1804, by the defendants, has been shown,_ no case, in my opinion, is presented for relief for which the plaintiffs demand judgment in this action, and the complaint will, therefore, be dismissed upon the merits, with costs. Draw decision accordingly, and settle on one day’s notice.


author: Per Curiam.

text:
    National Bank of Auburn, Resp’t, v. Edwin R. Dillingham, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Corporations — Directors—Liability.
    The provisions of section 24, chapter 688 of 1892, which renders the directors liable for the corporate debts in excess of the paid-up capital, relates only to the creditors whose debt is thus created, and the other creditors are not necessary parties to an action to enforce such liability.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      Nelson S. Spencer, for app’lt; Charles I. Avery, for resp’t.
   Per Curiam.

— Interlocutory judgment affirmed on opinion of Rumsey, J., at special term, with leave to the defendant to answer within twenty days on payment of the costs of the demurrer and of this appeal. Certificate allowed for appeal to the court of appeals.

The opinion of Mr. Justice Rumsey, as special term, is as follows :

This is an action brought under section 24 of the stock-corporatian law (chapter 688, Laws 1892), to enforce against the defendants the liability created by that section. The complaint alleges, substantially, that the Auburn Woolen Company was a corporation organized under the laws of the state of New York, of which the defendants were some of the directors, and that the company was organized under the manufacturing corporations act, passed the 17th of February, 1848. The complaint further alleges that at certain times, therein more particularly stated, the Auburn Woolen Company borrowed from the plaintiff, upon promissory notes, the sum of $20,000, and that at the time of making the several loans stated in the complaint, the total indebtedness of the Auburn Woolen Company, not secured by mortgage, exceeded the amount of the paid-up capital stock of the company. It is further alleged in the complaint that each of the defendants consented to the creation of the said debt to the plaintiff, and judg- ’ inent is demanded against the defendants for the sum of $20,000. The defendant Dillingham demurs to the complaint upon the ground, among others, that there is a defect of parties plaintiff and defendant in that the creditors of the Auburn Woolen Company, other than the plaintiff, are not made either parties defendant or parties plaintiff.

Upon the argument some technical defects were suggested, by reason of which it was claimed that the demurrer should be overruled, but as the conclusion has been readied, upon the merits of the case, that the demurrer is not well taken, those technical defects will not be considered. As stated, the action is brought under section 24 of the stock-corporation law. That part of the section relied on reads as follows : “ No stock corporation * * * shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and'the directors creating or consenting to the creation of any such debt shall be personally liable therefor to the creditors of the corporation.” The law created by this statute is unquestionably a contract, and not a penal, liability. Patterson v. Robinson, 36 Hun, 622 ; 37 id. 341. The liability is created by this section, and the extent and nature of it must be found by considering the words of the section. It is confined, as is quite clear, to the directors who create, or consent to the creation, of the prohibited debt. Such directors are made personally liable “ therefor.” The word “ therefor ” refers necessarily to the previous words, “ any such debt,” and the liability is necessarily only for the' particular debt, and not for anything more. This seems to be perfectly clear from the reading of the statute. The statute says that the liability is to the creditors of the corporation, and it is claimed by the defendant that these words of the statute have the effect to add to the security of all the creditors of the corporation the amount of the particular debt for which the particular directors who consent to its creation are personally liable. I do not think that these words can be construed to extend the liability of the directors so far. Their responsibility is for the debt, and for nothing more, and the words, “ to the creditors of the corporation,” can only be construed as descriptive of the person to whom the particular debt • is owing, In the case of Patterson v. Robinson, supra, the same question was presented under the lay-" of 1848, and the court, in that case, held that the section should be construed as though it had read : “ To the creditors of the company to whom such excess is owing.” While that section reads differently fi’om the section under consideration, the nature of the liability is the same, substantially, and that case should be deemed a controlling authority upon that point. The defendant, in support of his demurrer, cites the case of Anderson v. Speers, 21 Hun, 568. That case was under consideration in the case of Patterson v. Robinson, supra, and it was urged upon the general term as a, controlling authority upon the point here presented, but the general term of the third department declined to follow it. Subsequently in the cases of Lovelace v. Doran and Lovelace v. Doran & Wright Company, the same questions presented here were presented to the court. Judge Churchill decided those cases at special term, and held that the case of Anderson v. Speers was practically overruled by the case of Patterson v. Robinson, and, following the latter case, decided that in these actions it was not necessary that all the creditors of the corporation should be made parties. Those two cases were subsequently affirmed by the general term of the fourth department, upon the authority of Patterson v. Robinson, 37 Hun, 341. By the concurrence of authority of the two general terms I feel that the court here is bound, and that the demurrer must be overruled. '

Judgment is accordingly ordered for the plaintiff upon the demurrer, with leave to the defendant to withdraw his demurrer and answer, on payment of costs.