text:
    George L. Kingsland et al., App’lts, v. John Hall, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    Summary pboceedings—Vebdict.
    _ In summary proceedings to eject a tenant, the latter denied the allegations of the petition, and set up a new oral lease for one year. The evidence as to the making of such lease was conflicting, but there was sufficient evidence, if believed, to authorize a finding that one was made. Held, that a verdict in favor of the tenant would not be disturbed.

      Appeal taken by the landlords from a final order of the district court in the city of New York, for the third judicial district, dismissing summary proceedings to recover the possession of premises on the corner of Bank and West streets in the city of New York for non-payment of rent

      John A. Taylor, for app’lts; William B. Barrichlo, for resp’t.
   Bookstaver, J.

The proceeding was commenced in the district court of the city of New York, for the third judicial district, on the 5th of May, 1891, by the service of a precept on the tenant, to which he interposed an answer denying that the landlords-were entitled to the possession of the premises, or that the term had expired, or that he held over after the expiration of the term; and setting up a new oral lease of the premises from the plaintiffs for the term of one year from the 1st May, 1891, at a yearly rental of $1,500. The issues so raised were tried by the justice in the court below with a jury. No exceptions were taken by the-landlord to the rulings upon the trial, or to the charge of the justice. The jury found that the landlord was not entitled to the possession of the premises. The reason for this verdict seems to-have been that the jury believed that an oral lease for one year had been made between the landlords and the tenant on the 8th April, 1891.

There can be no question but that an oral lease for one year to-commence in futuro is as valid as if it were in writing, and so-the only question to be considered on this appeál is whether the verdict of the jury was in accord with justice and based upon the evidence.

The chief point of contention was whether or not the oral lease-was made as claimed by the tenant There is sufficient evidence, in our opinion, from which the jury could properly infer that the minds of the parties met at that time and that a lease was then consummated. It is true that there is much evidence to the contrary of this, but the jury had the advantage of hearing the testimony of the various witnesses, and it was within their province to give such weight to the evidence as they thought proper, and it is not in the power of the court to set aside such verdict, unless it is clear that it was the result of passion, prejudice, mistake or corruption, or without evidence to support it, or so-against a striking preponderance of evidence that the exercise of common judgment demands its reversal. Morss v. Sherrill, 6 Barb., 21; Sherwood v. Hauser, 94 N. Y., 626; Bannwart v. Bohemian Brewing Co., 29 St. Rep., 306; Dempsey v. Paige, 4 E. D. Smith, 218; Donohue v. Henry, id., 164.

We therefore think that the final order dismissing the proceedings should be affirmed, with costs.

■ Bischoff, J., concurs.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    James Darling, Resp’t, v. Henry C. Albert et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    Master and servant—Commission on sales—Counterclaim.
    In an action for commission on orders taken for defendants, the latter counterclaimed for damages incurred by plaintiff, failing to take certain, orders subject to change in tariff, according to his instructions. Plaintiff sent memoranda of the orders to defendants, who accepted them and. wrote the condition thereon, to which the purchasers objected and offered to return the goods. Held, that the orders sent to defendants were not binding on them because signed by no one, and if in their opinion it was. better to sell the goods although the purchaser declined to pay the increased duties, plaintiff was not responsible for their determination, and that the counterclaim was properly disallowed.
    Appeal from a judgment rendered in the district court of the-city of New York for the first judicial district

      Samuel D. Peck, for resp’t; Curie, Smith & Mackie, for app’lts.
   Bookstaver, J.

Plaintiff sued for his commission on certain sales made by him for defendants. His claim was admitted, and defendants set up a counterclaim alleging that the plaintiff was instructed to take all orders “ subject to changes in the tariff,” and because he did not do this in all cases claimed damages to an amount exceeding the cause of action of plaintiff. Defendants, in proof óf their counterclaim, offered in evidence a copy of art import order of Neuhausel Bros, and another of William H. Bur-tell & Co., which plaintiff took for them and transmitted to them. Plaintiff claims that when these orders were taken he stated to the persons to whom the goods were to be sent that they would be sold “ subject to the change in the tariff,” and that he immediately sent the orders to the defendants and instructed them that the sales were made subject to tariff changes. Notwithstanding this,' the defendants accepted said'orders, containing a list of the items, t.erms, etc., and wrote at the bottom of the acceptance the following: “Subject to change of tariff.” To this clause the purchasers objected, and defendants replied that it was put there in order to prevent misunderstanding in cases where import orders had to be filled, and that not hearing from the purchasers at once the defendants had concluded that everything was satisfactory,, and claimed that if they had any objection to make to the clause inserted it should have been made at the time of receiving the bill with the goods. Thereupon the purchasers immediately offered to return the goods.

In ■ our opinion the orders transmitted by the plaintiff to the defendants were not contracts binding on them; they were signed by nobody, and were simply memoranda of the qualities and prices. It was within defendants’ power, had they chosen, to have refused to fill the orders altogether, or to have modified the terms. If they did not insert the provision in question, they were as much at fault as the plaintiff; if they did insert the clause, as they claim, and would only sell upon those terms, then it is clear from the testimony the purchasers offered to return the goods to them and cancel the order. If in their opinion it was-better to sell the goods, notwithstanding the purchaser declined to pay the increased duties, it was a matter for them to determine, and with this determination the plaintiff had nothing whatever to do.

We therefore think that the justice was right in refusing to-■allow the defendants’ counterclaim, and that the judgment should be affirmed, with costs.

Bischoff, J., concurs.


author: Daly, Ch. J.

text:
    Horace M. Williams et al., App’lts, v. The Edison Electric Illuminating Company of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    1. Mechanic’s lien—Pasties.
    Section 17 of the general mechanic’s lien law, prescribing certain necessary parties to an action of foreclosure, does not preclude the bringing in of other parties who may be found to be necessary to a complete determination of the controversy.
    3. Same.
    In such an action, where the owner of the building has paid the fund into court, the court has power to bring in, upon motion of the principal contractor, a party who had filed no lien, but claimed a portion of the fund under a draft or order for payment made by plaintiff upon the principal contractor, although the principal contractor refused to accept said order, and the plaintiff had afterwards revoked it.
    Appeal by the plaintiff from an order of the special term of this court granted May 1, 1891, on a motion of the defendant, making “ The Samuel L. Moore & Sons Company ” a party defendant in this action which is brought to foreclose a mechanic’s lien against the Edison Company as contractors and the Deutscher Verein as owner.
    1 Yilliam T. Birdsall, for app’lts; Sherburne B. Eaton, Eugene H. Lewis and Arthur P.Hodgkins,ioi resp’t, The Edison Electric Illuminating Company of H. Y.; Theodore F< Miller, for the Samuel L. Moore & Sons Company.
   Daly, Ch. J.

The Edison Company were contractors with the Deutscher Verein for the installation of an electric plant in the latter’s building in the city of Hew York. The Edison Company made a sub-contract with the plaintiffs for the supply of an engine and other fixtures for the work at the price of $2,590, and the plaintiffs made a sub-contract for the supply of the engine with The Samuel L. Moore & Sons Company for the sum of $1,250. When the engine was finished the plaintiffs gave the latter company an order on the defendant, the Edison Company, as follows:

“Hew York, January 20, 1891.
“ Edison Electric Illuminating Co.,
“ 432 Fifth avenue, Hew York.
“ Gentlemen : Please pay to the Samuel L. Moore & Sons Co., o£ Elizabethport, H. J., the sum of twelve hundred and fifty (1,250) dollars, and charge the same to our account of the Deutscher Verein Club engine. The payment to be made when the money is due as per terms and conditions of our contract with you for the above plant. Yours very truly,
“Williams & Potter.”

The Edison Company refused to accept the order and afterwards received from the drawers notice of its revocation, but the payee notified the Edison Company that it would hold the latter responsible upon the order. The mechanic’s lien which this action is brought to foreclose was subsequently filed by the plaintiffs as sub-contractors against the Edison Company and the Deutscher Yerein for $1,590, the balance due plaintiffs under their contract with the Edison Company, and this action having been brought to foreclose such lien, the Deutscher Yerein paid into court the sum of $1,800. The lien was satisfied and the action discontinued as against the latter. The Edison Company then made a motion that The Samuel L. Moore & Sons Company be joined as a party defendant or be substituted as defendant in place of the Edison Company. The court granted the motion so far as to make the Moore Company a party defendant, and from the order entered thereon this- appeal is taken.

It is claimed by appellant that the payee of the order drawn by the plaintiffs against the defendant is not a necessary nor a proper-party to a controversy which relates only to the plaintiffs’ right to a strictly statutory lien. , The controversy, however, involves the plaintiffs’ right to the fund in court and to a judgment turning the money' over to them, and this right is disputed by a third-party claiming to be the assignee of the fund by virtue of an assignment made before the filing of the lien. The Code provides, (§ 452), “ that the court may determine the controversy as between the parties before it where it can do so without prejudice to the rights of others or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties the court must direct them to be brought in.”

The whole controversy' between the plaintiffs and defendant, upon which the plaintiffs’ lien depends, is whether the Moore Company holds an assignment of the plaintiffs’ interest in the fund, and it is manifest that this controversy cannot be determined without the presence of the assignee, since the Edison Company, having notice of the assignment, would not be protected by a judgment in an action to which the assignee was not a party. The order operated, it is claimed, as an equitable assignment of so much of the fund as was specified in it. A formal acceptance was not necessary, but notice of the assignment was sufficient, and from the time of such assignment and notice the drawee became the trustee of so much of th^fund as was thus assigned and had no right to convert or misappropriate it. People ex rel. Dannat v. Comptroller, 77 N. Y., 48. After notice of an order which was in effect an assignment of the contractor’s interest in the moneys, in the defendant’s hands/tlie latter was bound to apply the fund to its payment and to other purpose. Lauer et al. v. Dunn, 115 N. Y., 409; 26 St Rep., 412.

The court is not required, upon the motion, to find that the third party claiming the fund is absolutely entitled to it, but only to be satisfied that there is a basis of claim. The claimant here holds an order which seems to be an equitable assignment of the particular fund in suit The order was obviously not a mere draft drawn upon the general credit of the plaintiffs with the Edison Company, but was an appropriation of part of the indebt•edness falling due under a particular contract As clearly stated by the learned judge at special term: “ Whether such an order is to be regarded as an assignment or as a mere draft depends upon the intention of the parties as expressed in the order itself or gathered from surrounding circumstances. If it be intended as a direction to the drawee to advance the amount of the order without regard'to the state of the account, and charge the amount thus advanced to the drawer, and that the drawee is subsequently to reimburse himself out of the sums to become due from him to ".the drawer on the specified account, or is negotiable, then it is not ¡regarded as an assignment; but if from the paper itself or the surrounding circumstances it is apparent that the drawer intended that the drawee should pay the amount out of a designated fund when it would accrue, then it operates as an assignment pro tanto of such fund. Gunther v. Darmstadt et al., 13 St. Rep., 145 ; People ex rel. Dannat v. Comp., 77 N. Y., 45; Brill v. Tuttle, 81 id., 454; Schmittler v. Simon, 101 id., 554; Lauer v. Dunn, 115 id., 405; 26 St. Rep., 412.

“ The paper in question is not negotiable. It is evidently intended to be charged against the amount to accrue out of the designated fund, and hence operates as an assignment pro tanta ■of such fund; and the Moore Company stands as an assignee to that extent”

The payee of this order claims to hold it for a valuable consid-eration, namely, the delivery of the engine, for the price of which the order was given and, in all respects, to stand in the position of assignee within the rule laid down by the court of appeals: “ When for a valuable consideration from the payee an order is ■drawn upon a third party and made payable out of a particular fund then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund, and the drawee is bound after notice of such assignment to apply the fund as it accrues to the payment of the order and to no other purpose, and the payee may by action compel such application.” Brill v. Tuttle, 81 N. Y., 457.

But it is further contended by appellant that none can be made parties to an action to foreclose a mechanic’s lien save those persons ■expressly enumerated in the statute. The statute is as follows, Mechanic’s Lien Law of 1885, chap.,^342, § 17: “Any person or persons, firm or firms, corporation or association filing a notice of lien, or the assignee of such person or persons, firm or firms, corporation or association, after the filing thereof, shall be the plaintiff in such action. The plaintiff must make the parties who have filed notice of liens against the property asewell as those who have subsequent liens and claims by judgment, mortgage or conveyance, parties defendant.” The parties named in this section are made necessary parties by that provision, but that enactment does not and cannot say that no other person may be found to be, or may become, necessary to a complete determination of the controversy ; that is and must be left to the court to decide in each case; and the provision in question neither expressly nor impliedly limits the power of the court to bring in other persons who may be found to be necessary. Nothing in the section excludes the exercise of a power which is practically indispensable and which is granted by the Code in terms to embrace all actions.

The necessity and propriety of bringing in the Moore Co. as party to the controversy in this action is manifest upon another ground. As holders of the order drawn by the plaintiffs upon the Edison Co. but not accepted by the latter, they have no right •of action at law upon it against the drawees, but .they have the :right to enforce it in equity in an action to-' which the drawers, the drawees and all claimants to the claim fund' must be made parties. Field v. The Mayor, 6 N. Y. 179; Parker v. City of Syracuse, 31 id., 379. In other words the Moore Co., if refused admittance to this controversy between the drawer and drawee ■of their order; can immediately institute an action making the very same parties defendants to try the same issue that is to be determined in this suit. If all those parties are necessary to such .an action they are equally indispensable• here; and' we have against the plainly sensible course of bringing them all before the ■court only the objection that there is something in the nature of ■an action to foreclose a mechanic’s lien which renders that course impossible. If this were so it would be fatal to the plaintiff’s action, for the court would be bound to dismiss it. But there is no such difficulty; we are not obliged to construe the mechanic’s lien act in a sense which might in some cases nullify the benefits it was intended to confer and deprive a party of his lien because the court was impotent to bring before it the parties necessary to ■a complete determination of the controversy.

These considerations dispense with the necessity of inquiring whether the Moore Co. can be made a party, not having the right ■to file a lien. The necessity of making it a party grows out of its ■connection-with the controversy and not its right to a particular statutory remedy. The fact that it could' not file a mechanic’s .lien does not affect its right as assignee (if established) to the whole fund in dispute.

It is not necessary to notice at length the other objections on appellants’ brief which are no(; covered by the, foregoing considerations. It was not fatal to this motion that it embraced, as appellants claim, antagonistic subjeóts, i. e., to interplead or to add a party defendant. The casefe of Walkinshaw v. Perzel, 7 Rob., 606, cited by appellants, does not sustain their point. A party may ask alternative relief and is entitled to what the facts-warrant. Collusion is not ah answer to an application to bring in a party .necessary to a complete determination of a controversy.

The order should be affirmed, with costs.

Bischoff, J., concurs.


author: Per Curiam.

text:
    Mary Monell, Resp’t, v. Margaret K. Douglass, App’lt.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    Deed—Covenant—Incumbrances.
    A deed conveyed properly subject to two mortgages. At the time it was delivered an action to foreclose one of the mortgages had been commenced and a lis pendens filed. Held, that the commencement of the foreclosure action was but an incident of the incumbrance subject to-which the title was taken, and that neither it nor the lis pendens created any new incumbrance; and that the costs paid by the vendee to discontinue such action and set aside the lis pendens could not be recovered under the covenant against incumbrances.
    Appeal from judgment of the general term of the city court of Mew York, affirming judgment in favor of plaintiff.
    On October 25,1889, the defendant and the plaintiff entered into-a contract whereby defendant agreed to sell to plaintiff the premises known as Mo. 207 Bast One Hundred and Second street, Mew York city, for $16,750, to be paid at follows : $1,000 at the making of the contract; $1,750 at the delivery of the deed; and the-balance, $14,000, by the plaintiff taking the property subject to-two mortgages ; a first mortgage of $12,000, and a second mortgage of $2,000.
    On Movember 23, 1889, the defendant delivered to plaintiff her deed dated that date, whereby she conveyed said premises, “ subject, however, to two certain mortgages thereon; one of Thomas»McGuire to Cecile Eusch for $12,000, and another for $2;000 by said McGuire to Michael Duffy,” and among other things, defendant covenanted as follows: “And that the same (that is, the premises conveyed), are now free, clear, discharged and unincumbered of and from all other former grants, titles, charges, estates, judgments, taxes, assessments ana incumbrances of what nature or kind soever, except as aforesaid.”
    After the making of said contract of sale and before the delivery of said deed, the then holder and ownér of said second mortgage of $2,000 began an action in the supreme court for Mew York county to foreclose said mortgage, and filed in the clerk’s office of that county a notice of the pendency of that action. Defendant Margaret K. Douglass was a party defendant in said foreclosure suit, and said notice of pendency of action was docketed against her, and the summons and complaint in said foreclosure-suit served upon her before the delivery of said deed.
    After the delivery of said deed the plaintiff paid $76.25 for the purpose of obtaining the discontinuance_ of said foreclosure-suit and the cancellation of said lis pendens against said property.
    After said payment and after the delivery of said deed, an order was entered by the plaintiff in said foreclosure action discontinuing said suit.

      G. W Wilson, for resp’t; Kenneson, Grain & Ailing (Thaddeus-. tS. Kenneson, of counsel), for app’lt
   Per Curiam.

We are unanimously of the opinion that the filing of the lis pendens created no new upon property and that the commencement of the foreclosure action was a-mere incident of the incumbrance subject to which the plaintiff took the title. We also think the payment of costs was a voluntary payment on the part of the plaintiff in this action and is not recoverable under the covenants of her deed.

There should, therefore, be a reversal of the judgment and a ¿new trial with costs to the appellant to abide the event.

Bookstaveb, Bischoff and Pbtob, JJ., concur.


author: Bookstaveb, J.

text:
    Arthur J. Horgan et al., Resp’ts, v. Jane McKenzie, App’lt.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    1. Contract—Elevator.
    A contract for the repair of a building called for a combination passenger and freight car, without specifying that it should have gates. Feld, that in the absence of proof of an understanding in the-trade that they should be supplied or that such car is incomplete without gates, the contractor cannot be held liable for a failure to provide gates.
    ¿2. Same—Loss op rent.
    A claim for loss of rent by reason of failure to complete in time cannot be offset against the contractor where it appears that a portion of the premises were let before the repairs were completed, and the rest were afterwards let for more than the owner could have previously rented them for.
    ¿3. Same.
    The contract called for “ an Otto gas engine of best capacity to run the elevator.” The engine put in was in perfect condition, but was subsequently deemed too weak by defendant, who had it changed. It was shown that engines of both capacities were used, but that put in was the usual kind for such buildings. Feld, that in view of the indefiniteness of
    ' the specifications, the perfect condition of the engine furnished and the testimony, the referee did not err in finding for the contractor.
    4. Mechanics’ Lien —Evidence.
    The admission in an action to foreclose a mechanics’ lien of plaintiff’s testimony as to the value of the work, even though it show that it was worth more than the contract price, if error, is harmless where the réferee allows only the contract price.
    ■5. Same—Extra allowance.
    Sectim 8258 of the Code, providing for an extra allowance to the prevailing party if the action be difficult and extraordinary, applies to an action to foreclose a mechanic’s lien.
    Appeal from a judgment entered on a report of a referee.

      David J. Newland, for app’lt; Abram Klmg, for resp’ts.
   Bookstaveb, J.

This action was brought to foreclose a mechanics’ lien against the premises 765 Broadway for labor and material under a contract for the repair of those premises. The -action was tried by a referee- and resulted in a decree of foreclosure. The appeal raises questions of fact chiefly. The answer admitted the contract, but put in issue its performance, and the •claim for extra work except to the amount of thirty-two dollars, •and set up four counterclaims. The first alleged that improper materials had been used and the work had not been done according to the contract. The second alleged a failure to perform the work by the time limited in the contract and claimed that by reason thereof defendant had been compelled to let the premises •at a reduced price. The third claimed that plaintiffs had not done all the work and had not furnished all the materials required by "the contract, and that she had been compelled to do such work and furnish such materials to her damage, and the last alleged ¿that the plaintiffs had failed to put in an engine of the capacity required by the contract and in consequence she had been compelled to remove the one put in, and replace it with another of greater capacity. The referee allowed items under the first and third counterclaims amounting to $254.13.

But appellant contends that she should have been allowed the-sum of seventy-five dollars which she paid for gates to the elevator. The contract is silent as to whether there were to bo gates to the-car or not; it merely called for a combination passenger and freight car. If appellant had desired gates to it, she should have provided for it in her specifications. There is no proof in the case that, when they are not specified, the understanding in the trade is that they should be supplied, nor is there proof that such a car-is incomplete without gates. It is true that one. witness, the mechanic who afterwards put on the gates, testifies that in his-opinion gates are proper and necessary on a combination car, but he says nothing as to what constitutes such a car as understood in the trade.

It was also urged on the appeal that the ceiling in the store-was not according to contract, in that the material was not of first, quality. Two witnesses on behalf of the defendant testified that the material was of second or third quality, being knotty and having pitch in it, as well as being the sappy part of the wood; but neither of these witnesses saw the ceiling until after it had ‘two coats of paint on it, while the plaintiff Horgan and one Hirsch, the merchant who sold him the lumber, both testify that the material was of the best quality.- There being such contradiction of testimony, we do not think the referee erred in finding as he-did on this question. .

Defendant also claims that she should have been allowed for loss in rent because the repairs were not completed by the time limited in the contract. But we do not think the referee would, have been justified in finding that she had lost rent for that reason. He has found that the work was completed about the 15th of April; the testimony is conflicting as to when it was finished, but we do not think that a very material question in this case; our attention has not been called to any testimony tending to show that the defendant complained of delay while the work was going on, or indeed until this action was commenced; while it cloés appear from the testimony of Harrell, the real estate agent, that the property was placed in his hands to be let early in February, 1890, which was before the contract for repairs was made; that he rented all the lofts to a Mr. White early in March, and that the latter moved in about April 1,1890. It is therefore clear that the fact that the repairs were not completed by the time fixed in the contract could have had no effect on the rental price of the lofts. According to Harrell, the asking price for these lofts was $4,500, and the defendant, after negotiation, agreed to let them for $3,500. Harrell further testified that he had negotiated with several people for-the store and basement; that these negotiations-commenced as early as February, 1890; that in that month hell ad an offer for the premises, but that it was not as much as heafterwards obtained from Yeé Long & Go.; the present occupants that he finally let the store premises to them for $4,000 on the 20th of April, 1890. In view of these facts, the opinion of this witness and another real estate broker, that they ought to bring from $8,500 to $9,000, amounts to little. It is clear that the defendant obtained more for the premises on the 20th of April than she could have done at any time before.

Under the circumstances of this case, we do not think the referee erred in allowing plaintiff Horgan to testify what the reasonable value of the work actually done was, even although it showed that it was worth more than the contract price. But if it was error, it did the defendant no harm, as the referee only allowed the contract price for it.

While there is a conflict of evidence as to whether the plaintiffs did the extra work they claimed or not, yet we can see no reason why Ms conclusions as to this should be disturbed. There is certainly sufficient evidence to support, them.

The only remaining question arises on the testimony given under the fourth counterclaim. The specifications required the plaintiffs ■ to “furnish an Olto gas engine of best capacity to run the elevator, and guarantee the same to the owner; also take out the present car and put in a combination passenger and freight car.” If instead of the phrase “best capacity,” the contracting parties had inserted a provision requiring the engine to be of a definite horse power, then there would have been no ambiguity in this specification. But, as it stands, the power of the engine to be supplied is left undetermined. There is nothing in the specification which provides for any definite rate of speed, nor for any definite weight to be moved. It is obvious that the rate of speed and the ability to carry weight required will vary with the different uses to which the premises are or might be put Thus, if it were chiefly for the purpose of carrying passengers, a greater rate of speed would be required than if it were merely to lift weights ; and again, the weights to be put upon the elevator would vary with the occupation of the lessees, a metal worker requiring an engine and elevator capable of carrying heavier weight than would a fancy goods manufacturer. From the evidence it appears that the engine as originally put in by the plaintiffs moved the elevator with a normal load about fifty feet a minute; complaint having been made by the lessee to the defendant of the slowness of movement, she had the pulley drum regulating the movement of the engine enlarged, thus increasing its. speed, but of course in a gas engine diminishing its ability to carry the load, and then it was complained of as being too weak. Mr. Manning, one of the members of the firm which put in the original engine, and also the substituted, was called as a witness by the defendant, and testified they had put in about as many ten horse-power engines as seven horse-power engines for the combination passenger and freight elevator, and that there were about as many sevens as tens for that combination; and that they had recommended the seven horse power engines in buildings of the same kind where they were running for passenger and freight service, and that such engines suited some people, and not others. It was also testified by the plaintiff Horgan, and not contradicted on behalf of the defendant, that the seven horse-power engine was put in hy the direction of Mrs. Mackenzie after a conversation with her. It also appears from the evidence that the seven horse-power engine was removed, and a ten horse-power engine put in several months after the contract, without notice to the plaintiffs of the defendant’s intention to make the change. It is true that the defendant towards the latter part of June notified the plaintiffs that the engine in her judgment was not of sufficient capacity, and invited, them to make further experiments with it; but it appears in the testimony that such experiments had been made before the engine was turned over to the defendant, and was then supposed by the plaintiffs to be sufficient It was not claimed on the trial that the engine was not a perfect engine of its kind, and properly put up; the only complaint was as to its capacity.

In view of the indefiniteness of the specifications making no requirement either as to speed or weight to be carried, the perfect condition of the engine put in and the testimony in this case, we cannot say that the referee erred in his conclusion as to this matter.

On the argument it was said that the specifications were drawn by the plaintiffs, and, therefore, should be construed most strongly against them. But the defendant was bound, if there was any ambiguity in the specifications as submitted to her, to have all such ambiguities cleared up before she entered into the contract, and the ambiguity is as much owing to her oversight as to theirs.

Where a contractor has in good faith intended to comply with a building contract, and has substantially so done, although there may be slight defects caused by inadvertence or unintentional omissions which are susceptible of remedy without difficulty, "so that an allowance out of the contract price will give to the other party a full indemnity, the contractor may recover the contract price less the damages of such defects. Woodward v. Fuller, 80 N. Y., 312. Such seems to have been the intention of the contractors in this case.

We therefore cannot say that the referee erred in his conclusions in this case, and the judgment should be affirmed, with costs.

On the argument it was claimed- that the order granting the plaintiff’s attorney an extra allowance for costs was improperly made, and the case of Hagan v. American Baptist Home Mission Society, 6 St. Rep., 212, was cited in support of this contention. But that case was decided under the law as it stood before 1885, and this court has decided in Lawson v. Reilly, 18 Civ. Pro., 290, that the prevailing party is entitled to an extra allowance if the action be difficult and extraordinary under § 3253 of the Code, and that that section applies to all civil actions.

The judgment should, therefore, be affirmed, with costs.

Daly Ch. J., concurs


text:
    Robert W. Drummond, Resp’t, v. Frank L. Fisher et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    1. Summary proceedings—Petition—Nature op occupancy.
    An allegation in a petition in summary proceedings that certain persons “ as assignees or undertenants” hold over after the expiration of the tenant’s term, cannot he construed as an allegation that such persons were assignees of the lease; it is merely a designation of the parties in possession, without alleging the nature of such possession.
    3. Same—Assignment op lease.
    An assignment of a lease is not proved by an endorsement of an alleged assignment thereon where the signatures of the lessee and the witnesses appear to be in the same writing, there is no acknowledgment thereof or proof of execution, or of knowledge or assent thereto by the landlord.
    3. Same—Assent by landlord.
    The assent of the landlord to an assignment of a lease is not shown by the receipt from the partners of the lessee of checks for the rent in the same form as those previously given, where the landlord is not shown to have had knowledge of the formation of the new firm.
    4. Same—Renewal—Conveyance by landlord.
    A lease provided for a renewal provided the property was not sold, and that no assignment should be made without the landlord’s consent. Feld, that tenants who claimed to be assignees of the lease, but who fail to prove a valid assignment assented to by the landlord, had no standing in court to attack the bonafides of a sale of the property.
    5. Same—District courts—Removal op cause.
    The provisions of the Code and the Consolidation Act relating to the removal of causes in district courts to the common pleas before answer do not apply to summary proceedings.
    Appeal from a final order of the district court in the city of ¡New York for the eleventh judicial district, awarding possession of the premises to the landlord.

      Abel Croóle and John Callahan, for resp’t; Platt & Bowers, for app’lts.
   Bookstaver, J.

This appeal is prosecuted by Ezra Haskell and Peter T. Radiker, two only of the parties defendant to the summary proceedings. ■ The premises in controversy consists of the store floor and a certain part of the cellar of the' building on the southwest corner of Ninth avenue and Eighty-fourth street in this city. The lease under which the appellants claim their right to the possession of the premises was made on the 6th day of November, 1889, by Mrs. Catherine L. Beekman, then owner of the property, to one Frank L. Fisher, for the term of one year and six months from November 1, 1889, that is, until May 1, 1891, and contains a clause in the following words: “ It is further understood and agreed between the parties of these presents that the said party of the second part (that is Fisher), shall have the privilege of two years more after the expiration of the within lease at an increased rental of $100 per atinum providing the said building is not sold, and upon the same provisions, covenants and conditions as contained in this lease. A new lease to be drawn out at the expiration of the within for two years more. ” Among other covenants contained in the lease is one by the tenant (Fisher) that he will not assign this lease * * * without the written consent of the said party of the first part (Mrs. Beekman) under the penalty of forfeiture and damages.” On or about November 3, 1890, Mrs. Beekman executed and delivered to her daughters, Addie L. Beekman and Mary E. Beekman, a conveyance of these premises, which was recorded in the N. Y. register’s office December 31, 1890, and on April 24. 1891, the premises were, by direction of Mrs. Beekman’s daughters, put up for sale at public auction at the Real Estate Exchange & Auction Rooms through Richard Y. Harnett & Co., and were struck down to the present respondent, Robert W. Drummond, who thereupon professed to comply with the terms of sale and received a conveyance of the premises from the Beekman daughters, and thereafter took these proceedings as landlord to recover possession of the premises by reason of the expiration of the tenant’s term.

The appellants Haskell» and Radiker dispute the bona fides of Mrs. Beekman’s conveyance to her daughters, and also the bona fides of the sale at the Real Estate Exchange at which the present respondent became the purchaser, and claim that both sales were made in bad faith, without a valuable consideration, and for the sole purpose of depriving them of their rights under the lease to Fisher.

The original lessee, Fisher, did not appear or answer in the proceedings, nor has he appealed from the final order.

In order that the appellants might successfully attack the bona fides of these sales, it was necessary for them to show to the court that they had, by assignment or otherwise, become Fisher’s successors, and entitled to his rights of renewal under the covenant of the lease. This could have been done in several ways, and we have accordingly carefully examined the pleadings to see whether the fact of any assignment or other conveyance to them was admitted by the petition. The only clause in it having reference to this matter is in" these words : “ The term for which said premises were hired by said tenant (Fisher) and said thirty days having expired,'the said tenant and Ezra Haskell and Peter T. Radiker, as assignees or under-tenants, Christian J. Doody, Charles B. M-son, Steven S. Mason,"John Thomas and John Doe and Richard Roe * * * aS assignees or under-tenants, hold over and continue in possession of said premises without the permission of said landlord, and after the expiration of said tenant’s term thereunder.” We do not think that this language can be construed into an allegation that Haskell & Radiker were assignees of Fisher, any more than the same language could be construed that the other persons named were such assignees. The allegation is in the alternative form, and was merely intended to designate the parties in possession, without alleging the nature of such possession. Even in the answer it is rather assumed than expressly alleged that the appellants were the assignees of Fisher; the language being “and these defendants further deny that the term for which said premises were hired by said Frank L. Fisher and the term which was assigned to these defendants by him has expired,” although sufficient perhaps under the pleadings required in district courts to have permitted them on the trial to have given testimony of the assignment.

We have, therefore, carefully-looked through the return to see whether such testimony was given. The petitioner put in evidence the original lease between Mrs. Beekman and Fisher, which was duly marked by the court on the face of the lease itself. On the back of this lease is endorsed what purports to be an- assignment of it by Fisher to Haskell and Radiker, or perhaps we ought rather to say a copy of a supposed assignment, as it seems to us that Fisher’s signature thereon and that of the subscribing witness are in the same handwriting; but there is no acknowledgment of the execution of that instrument entitling it to he read in evidence ■ without proof; the subscribing witness was not called and gave no evidence regarding it, nor-was it, ás far as we can see from the return, offered by any one, nor is there anything in the return to show when the original of this copy was executed, or that it was ever executed; nor is there any proof that Mrs. Beekman or her grantee ever assented in writing to any assignment

Had the appellants gone into possession of the premises as assignees of Fisher, and either Mrs. Beekman or her grantee, the respondent in this proceeding, knowingly received rent from them, then we are of the opinion that we could have assumed there was an assignment, and that it was with the landlord’s consent, although no written consent was shown. But no such evidence appears in the case. It is true that Mr. Haskell testified that he and his copartner, Radiker, had occupied the premises from September, 1890, under the firm name of Frank L. Fisher & Co., which was formed at that time, and that checks for the rent were’ paid to Mrs. Beekman in the name of Frank L. Fisher & Co. But there is no evidence that Mrs. Beekman knew anything about the formation of a new firm, or that Haskell & Radiker were in the possession of the premises in question. The checks paid after September were in the same form and name as those paid before, and in the absence of proof we cannot infer that she must have known or ought to have been put upon inquiry in regard to the alleged transfer. And, besides, Mrs. Beekman testified that she knew nothing about Mr. Haskell; and the joint affidavit of the two daughters was put in evidence by the defendants, in which they affirm that they have no knowledge whether Fisher ever assigned the lease to Haskell and Radiker, thus sharply callingt he attention of the appellants to the necessity of proving an assignment.

The appellants having.failed to show their right to demand a new, lease of the premises, as provided for in the covenant regard-, ing renewal, had no standing in court to attack the bona fides of either of the conveyances, which they allege were made in bad faith. This being the case, it becomes unnecessary to examine the various exceptions to the admission or exclusion of evidence, and in our opinion the final order in the court below should be affirmed, with costs.

The appellants in the court below claimed the right to remove this case before trial to this court, and offered a bond for that purpose. Their proceedings, in order to effectuate a removal, were timely, provided they had a right to such removal in summary proceedings. But we do not understand that the provisions of the Code and consolidation act, providing for the removal of actions before answer, apply to summary proceedings. Before the new Code went into operation, it was held in Mittnacht v. Kellermann, 105 N. Y, 461; 8 St. Rep., 166, that the provisions relating to the removal of actions were not broad enough to include an action for .the claim and delivery of personal property.

The final order in the court below is, therefore, affirmed, wit costs.

Bischofe, J., concurs.


text:
    Edward F. Ward, Resp’t, v. Isaac Edesheimer et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    Landlord and tenant—Action for rent—Trespassers.
    Defendants leased from plaintiff’s assignors certain premises, a portion of which they had previously leased from the former lessee, the remaining portion having been sublet to one M., who continued in possession after defendants’ lease commenced. Held, that M. was a meré trespasser, having no contract relations with the landlords, and that the latter were not obliged to eject him and put defendants in full possession to entitle them to recover the rent.
    Appeal from judgment of the sixth district court.
    Action for rent. The following is the opinion of the district judge:
    Lachmah, J.—The question involved in this action is purely one of law. There is no substantial conflict in the evidence. The plaintiff’s assignors leased certain premises to the defendants. A portion of these premises had previously been hired by the defendants from a former lessee, and another portion had been sublet to one McMahon. After the defendants’ term in the entire premises had commenced, McMahon remained in possession of his portion. The defendants paid rent to the plaintiff’s assignors (as is conceded by the answer) for some months, but now contest this action for subsequent rent, on the ground that they have sustained damage through the failure to secure possession of the store. The decision of the case turns entirely on the question whether it is the duty of the landlord to eject the wrong-doer, and give the rightful tenant possession, or whether the latter must secure possession himself. The landlords were in no way directly connected with the withholding of the property. McMahon is not shown to have had any contract relation with them, nor- was he encouraged or assisted by them in any way. He had no paramount title or right, and, so far as is disclosed by the testimony, was simply a trespasser. The lease to Storz, under whom the defendants and McMahon held up to May first, expired on that day. Under these circumstances the authorities seem to leave no doubt that the plaintiff is entitled to recover. Gardner v. Keteltas, 3 Hill, 330; Mech. & Trad. Fire Ins. Co. v. Scott, 2 Hilt., 550. If McMahon were in under a paramount right, or by the consent of the landlords, or under a prior lease from the landlords, a different rule would apply. Trull v. Granger, 8 N. Y., 115. The fact that the lease was executed on May third does not seem to me to affect the rule. It is unnecessary to determine what remedy the defendants could pursue as against McMahon to secure possession. Whether they could maintain summary proceedings, as Judge McAdam insists in his treatise, or whether they would be left to their action in ejectment, is immaterial. The only remaining argument presented by the learned counsel for the defendants is based on the statute of champerty. Even if this statute could be held applicable to a lease of this sort, it has no application here, as McMahon is not shown to maintain such adverse possession as is contemplated by the law; and, further, there is no evidence whatever to show what claim he makes. The plaintiff is, therefore, entitled to judgment.

      Coleridge A. Hart, for resp’t; Benno Loewy, for app’lts.
   Per Curiam.

The questions involved in this action were purely questions of law. There was no substantial conflict in the evidence. We think that the court below has very clearly and succinctly stated the law applicable to the fact» in this case, and that the judgment should be affirmed on his opinion.

Bookstayer and Bisci-ioff, JJ,, concur.


author: Pryor, J.

text:
    Hannah T. Hart, App’lt, v. James B. Ryer et al., Impl’d, Resp’ts.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    1. Reference—Dismissal of complaint.
    Where the record does not disclose that either of the parties requested the referee to make findings, the judgment entered on his report dismissing the complaint at the close of plaintiff’s case is to he reviewed as on a non-suit for insufficiency of proof, and not as on a determination of the merits of the action.
    2. Master and Servant—Services—Breach of contract.
    In an action for services the defense was a wrongful abandonment of defendants’ service. ■ Plaintiff’s testimony was to the effect .that the cono tract of employment did not state where the services were to be performed, but that defendants’ place of business was in New York city and plaintiff resided there; that after six months defendants ordered him to go to work in Chicage; that he went there, but that it cost a large sum over his salary to conduct the business there; that defendants did not furnish said amount and plaintiff left Chicago and defendants refused to employ him elsewhere. No other evidence was given. Held, that it was error for the referee to decide the case as involving only questions of law and dismiss the complaint.
    Appeal from judgment on the report of a referee, which dismissed the complaint at the close of the plaintiff’s case. Action to recover for services rendered "by plaintiff’s assignor pursuant to contract with defendants.

      Charles P. Paly, for app’lt; F. A. Burnham, for resp’ts.
   Pryor, J.

Since the record does not disclose that either pellant or respondents requested the referee to make findings, the judgment is to be reviewed as on a non-suit for insufficiency of plaintiff’s proof, and not as upon a determination of the merits of the action on all the evidence. Columbia Bank v. The G. T. Church, 127 N. Y., 361; 38 St. Rep., 915; Place v. Hayward, 117 N. Y., 487; 27 St. Rep., 710. Hence, the specific point for adjudication is, whether the evidence, although insufficient to constrain the referee to find for the plaintiff, was yet such as required the submission of the issues to a jury and adequate to sustain a verdict for the plaintiff? An affirmative answer to this question involves, of necessity, a reversal of the judgment.. Scofield v. Hernandez, 47 N. Y., 313; Place v. Hayward, 117 id., 492; 27 St. Rep., 710.

It is error to withhold a case from the jury, “ if in any view of the evidence a verdict might have been rendered for the plaintiff, or if there.be questions of fact which might have been determined for the plaintiff, and which, if determined in her favor, would have entitled her to recover.” Clemence v. The City, 66 N. Y., 334, 338. So, on this appeal, we must assume every fact which the evidence tended to prove in plaintiff's favor; and every fact, in support of her cause of action, which may be deduced from the testimony by legitimate inference. Harris v. Perry, 89 N. Y., 308, 311. “ It is not error to refuse a nonsuit where, although the evidence is uncontradictory, conflicting inferences may be drawn therefrom; or where conflicting constructions or meanings may fairly be given to the language employed; the facts, not the evidence simply, must be undisputed to make the question one of law.” Smith v. Coe, 55 N. Y., 678.

From a review of the evidence, the conclusion is irresistible, that the learned referee was not at liberty to nonsuit the plaintiff.

On the trial defendant’s contention was, that plaintiff’s right of recovery being dependent, by the terms of the contract, on its complete performance, her assignor had forfeited all claim to compensation by a premature and wrongful abandonment of their service; to which her answer was, that by a breach of the contract on their part, he was justified in quitting their service. The «determination of this issue turned necessarily and fundamentally on the true meaning and construction of the contract, in this particular, namely: Whether the employment of plaintiff’s assignor was for service only in the city of Hew York, or whether the defendants had the right to establish and retain him in Chicago. Upon this point the terms of the contract are: That “ the parties of the first part agree to engage and employ the said party of the second part ” (plaintiff’s assignor), “ as a general assistant and salesman in their business of importing and selling upholstery goods, etc.” Quite obviously as to the locality of plaintiff’s service the contract is silent; and to ascertain the intent of. the parties in this particular, recourse is necessary to the circumstances attending the transaction. How, it was in evidence that plaintiff’s assignor resided in Hew York with his family; that defendant’s place of business was in Hew York; that during the first six months of his service plaintiff’s \assignor was employed in •Hew York; that his duties were, “to canvass the city trade.” Upon these facts, in connection with the contract, the intention of the parties would have been a question for the jury; and a finding by them that the defendants had no right to send plaintiff’s -assignor to reside and to labor out of the city would have had abundant evidence for its support. Hence, it was error for the •referee to solve the question as a conclusion of law arising upon ■undisputed evidence.

But the referee held the plaintiff “ estopped from insisting that ' iher assignor’s field of labor was only in the city of Hew York and the ground of the imputed estoppel is that “he went to Q hicago voluntarily and at his own request?” The assignor's testimony, however, is quite to the contrary; for he says: “Mr. -Ryer came to me and told me that Mr. Tynan had been pleased with the previous -trip, and that I could be of more service to them if I would go to Chicago, and he ordered me to go to Chicago. ” "The alleged estoppel then being an inference from equivocal and -conflicting evidence, the referee could not • predicate it as a legal proposition applicable to an uncontroverted state of facts.

It is indisputable, nevertheless, that plaintiff’s assignor did go to Chicago and there conduct defendant’s business for a period of time, and it was because defendants required him *to continue in -Chicago that he elected to treat the contract as at an end, and beforefits stipulated termination by his assignee bring this action for services rendered. The general question is, had plaintiff’s .assignor the right so to treat the contract ? If he had, the action was well brought. If he had not, plaintiff was not entitled to a recovery. On this appeal the particular question is, did it conclusively appear, as matter of law, on undisputed evidence, that plaintiff’s assignor had no" right to regard the contract as so broken by defendants as to authorize him to declare it at an end and to ■sue for services rendered? By his uncontradicted testimony it Appears that to conduct defendants’ business in Chicago with effect And profit required an outlay of $100 a month over the fifty dollars a week allowed him under the contract; that defendants failed to supply him funds for this necessary expenditure, and that because of that failure he abandoned the business in Chicago. By no term of the contract and by no item of evidence in the case is it apparent that the obligation to defray the expenses of the business was imposed upon plaintiff’s assignor; but the clear inference is rather that those expenses were to be provided for by the defendants. It results, therefore, that the refusal of defendants to supply plaintiff’s assignor with the means of conducting the business in Chicago justified him in abandoning it; and that their further refusal" to employ him plsewhere was equivalent, in legal effect, to a renunciation of the contract on their part, and so authorized him to sue for services rendered without plea or proof of entire performance.

We intend to intimate no opinion on the merits of the case. We impeach the validity of the judgment only as and because it professes to proceed upon inferences of law assumed as arising x om a • state of facts conclusively established by uncontradictory evidence. Had the learned referee not decided the case as involving only questions of law, but as presenting.issues of fact for his-determination, we might not have deemed it our duty to challenge his conclusions. In view of the ground upon which we dispose of the case, the absence of a certificate that the record contains all the evidence is immaterial.

Judgment reversed and new trial granted, costs to abide the event.

Bischoff, J., concurs.


text:
    The Health Department of the City of New York, Pl’ff, v. The Rector, Churchwardens and Vestrymen of Trinity Church, Def't.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Constitutional law—Laws 1882, Chap. 410, §§ 663, 665—Water in tenements in New York city.
    Sections 663 and 665 - oí the consolidation act, requiring that all tenement houses in the city of New York shall have Croton or other water-provided therein at one or more places on each floor, whenever the owners thereof shall he directed so to do by the board of health, and making failure on the part of the said owners to comply with such direction a misdemeanor, are unconstitutional and void.
    Motion by defendant for a new trial on exceptions directed to be heard at the general term in the first instance.

      W. P. Prentice, for pl’ff; S. P. Nash, for deft.
   Pryor, J.

The case is before us upon a motion by defendant,

for a new trial on exceptions directed to be heard at general term-The action is to recover a penalty claimed to be incurred by breach of a duty alleged to be imposed by §§ 663, 665 and 666 of the consolidation act. Section 663 prescribes that every tenement house erected or “converted,” after May 14, 1867, “shall have Croton or other water furnished at one or more places on each floor occupied or intended to be occupied by one or more families; and all tenement houses shall he provided with a like supply of water hy the owners thereof whenever they shall he directed so to do hy the hoard of health; but a failure in the general supply of water by the city authorities shall not be construed to be a failure on the part of such owner, provided that proper and suitable appliances to receive and distribute such water are placed in said house.” By § 665 every owner or other person violating any provision of § 663 is guilty of a misdemeanor, punishable by fine- and imprisonment, and “ shall be also liable to pay a penalty of' ten dollars for each and every day that such offense shall continue.” Section 666 defines a tenement house “ to mean and include every house, building or portion thereof which is rented, leased, let or hired out to be occupied or is occupied as the home- or residence of three families or more, living independently of each other,” etc., etc.

It is assumed, for argument, that the houses in question are tenement houses within the terms of the definition.

As appears by the complaint, by plaintiff’s proof and by its brief before us, the action proceeds upon that clause of the statute which requires all tenement houses, on the direction of the board of health, to be provided with water on each floor; and, accordingly, the plaintiff put in evidence the order of the board, whereby defendant was required to provide “suitable appliances to receive and distribute a supply of water on the top floor of Ho. 59; the basement, first and second floors of Ho. 77 ; the basement, first, ■second and third floors of Ho. 84, and the basement and attic of Ho. 86.” The complaint charges the defendant with default in 'respect only of two houses, namely, Hos. 77 and 84, and the default imputed is not the omission to do the thing required by the order, namely, to provide suitable appliances, etc., but a neglect •“ to furnish any water in sufficient quantity on each floor of the houses.”

For answer to the action defendant alleges, first, that water was furnished in the basement floor or in the yard of each house; secondly, that the order of the board was made without any previous notice to defendant; thirdly, that the act pursuant to which the order issued was not “ a regulation in a matter affecting health, and, fourthly, that the requirement of the act is unconstitutional and void.

On the close of the case each party moved the court to direct a verdict in its favor. The court denied defendant’s motion, subject to due exception, and granted plaintiff’s motion, subject to •like exception. Accordingly the jury returned a verdict for plaintiff in the sum of $200, the amount of penalties for twenty days’ default.

In deference to the manifest importance of the case, as involving the gravest questions of constitutional construction, as affecting the essential' securities of property, and as fraught with consequences incapable of assignable limits, we have bestowed upon it the most deliberate and anxious consideration, and the result is the conviction that the verdict is without legal support.

Since the action is brought to enforce a liability consequent upon the .neglect to perform the obligation imposed by the order of the board of health; and since the delinquency with which the ■defendant was charged, and of which it was convicted, namely, a neglect to supply water, and not a breach of the duty required by. the order, namely, to provide proper and suitable appliances, in view of the strictness with which penal statutes are to be construed, the inference is plausible, to say the least, that the plaintiff failed to establish the fundamental condition of recovery. We prefer, however, to rest our decision on more solid and substantial grounds.

1. On the trial the defendant tendered evidence that compliance with the order of the boaid would exact an expenditure of at least $100 for each house; and, as the offer was rejected, the ease “is to be considered as if the proof offered has been received.” Powell v. Pennsylvania, 127 U. S., 688; Scotland County v. Hill, 112 id., 186. We have, then, a substantial pecuniary burden imposed upon defendant by an order of which the statute, pursuant to which it was made, requires no notice in' advariCe to be given, of which, accordingly, no notice in fact was given, and against which, therefore, no opportunity was afforded defendant to be heard and make defense. Furthermore, disobedience to the order, against which no opportunity was afforded defendant to be heard and make defense, is punishable by fine and imprisonment, besides exposing him to liability for a penalty recoverable by a civil proceeding. Indeed, the statute in terms stigmatizes such disobedience as an “offense.”

Manifestly, in passing the order, the board exercised a judicial function; but if this were not so in the nature of the thing, the statute, by § 620, makes it so in declaring that “ the action, proceedings, authority and orders of said board shall at all times be regarded as in their nature judicial, and treated &s prima facie just and legal."

For anything apparent in the case, the defendant, upon opportunity given, might and would have exhibited sufficient and satisfactory ground of objection to the order; for example, that the tenants of the houses already enjoyed an abundant supply of water, and that they did not desire that which the órder required in their behalf. Nay, such proof was given on the trial of this-action, but the learned trial judge, with logical consistency, treated the order of the board as conclusive to the contrary, and, in the-direction of the verdict, disregarded the evidence as wholly irrelevant and immaterial.

That no man shall be affected in person or- property by a proceeding to which he is hot duly a party, is a fundamental principle of American jurisprudence. Indeed, an opportunity of defense-is an essential element in the conception of “ due process of law.” Stuart v. Palmer, 74 N. Y., 183. Hence, in The People v. The Board of Health, 58 Hun, 595; 35 St. Rep., 411, it was ruled that had the statute, under which thé board was authorized to require a. railroad company to make openings in an embankment-, dispensed with the necessity of notice, the act would have been unconstitutional ; and that the duties of the board being of a quasi judicial nature, the omission to give notice of the intended action was fatal to the regularity of the proceeding. So in Chicago, M. & St. Paul R. Co. v. Minnesota, 134 U. S., 418, the supreme court of the United States declared an act of the legislature, which authorized the board, without notice, to regulate the charges of a railroad company, to be unconstitutional, “as depriving the company of its-property without due process of law, and depriving it of the equal protection of the laws.” Clark v. The Mayor, 13 Barb., 32; Babcock v. The City of Buffalo, 1 Sheld., 317.

Inasmuch, then, as the statute purports to authorize the order in controversy without notice to the defendant, it is void; and the-omission, in fact, of notice to the défendant, is fatal to the regulárity of the proceeding.

IÍ. That to the amount of the pecuniary sacrifice to be incurred by defendant in furnishing the additional supply of water to the tenants of its house its property would be taken, is a self-evident proposition; would such taking be justifiable?

By § 1 of the fourteenthamendment of the federal constitution^ “No state shall deprive any person of life, liberty or property without due' process of law.” By § 6 of the first article of the state constitution, “ No person shall be deprived of life, liberty or property without? due process of law; nor shall private property be taken for public use without just compensation.” Thus, by the fundamental law, person and property are coupled together in indissoluble association; are regarded as objects equally, worthy of protection against arbitrary invasion, and are guaranteed inviolability by the self same securities.

Defendant’s property is proposed to be taken either for & public or a private use. If for a public use, such «taking would be mere confiscation, because without indemnity. If for a private use, such taking would be mere-spoliation, because property may not-be taken for a private purpose, even upon full compensation. Matter of Deansville Cemetery Association, 66 N. Y., 569; Loan Association v. Topeka, 20 Wall., 655. It is altogether immaterial, therefore, for which úse defendant’s property is proposed to be taken; in either case the taking would involve a violation of the safeguards of the constitution. It is manifest, however, that the taking would in no sense be for the use of the public, but solely for the benefit of the tenants whom defendant is compelled by the act to accommodate with the conveniences of water on the floors;

To this argument plaintiff’s answer is that the act is an exercise of police power, and so is not obnoxious to the prohibitions of the constitution ; the suppressed premises of the syllogism being that the police power of the state is above and beyond the restraints of the constitution. As regards the restrictions of the federal constitution the proposition is not without authority. Barbier v. Connolly, 113 U. S., 27; Powell v. Pennsylvania, 127 id., 683; for “it cannot be supposed that the states intended, by adopting the fourteenth amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health or morals of the community.” Mugler v. Kansas, 123 U. S., 664. And yet .in the case last cited the federal supreme court said: “Undoubtedly the state, when providing by legislation for the protection of the public health, the public morals, or the public-safety, is subject to the paramount authority of the constitution of the United States, and may not violate rights secured or guaranteed by that instrument. 123 U. S., 663; Powell v. Pennsylvania, 127 id., 686-7; Chicago v. Minnesota, 134 id., 458.

But the problem for solution is not whether the police power of the state be free from the restraints of the federal constitution, but whether it be unchecked and unqualified by the positive inhibitions of the state constitution. Upon this issue, obviously, the adjudications of the federal supreme court are of no relevancy or authority, because a supposed conflict between a state statute and a state constitution raises no federal question, and so is not within the scope of federal jurisdiction.

The police power comprehends legislation for the public health,, the public safety, the public morals andthe public welfare; in short, the police power is an equivalent term for the legislative-power. Gibbons v. Ogden, 9 Wheat., 203. In view, then, of the vast and indeed otherwise boundless extent of the police power, to affirm that it is unaffected by the limitations of the constitution, in other words, that it is legislative despotism, is to propound a palpable absurdity. Subject to the restraints of the constitution, the police power is necessarily fettered by the express and peremptory prohibition against a deprivation of property without due process of law, and the taking of property for public use without compensation.

And so are the authorities: “Another class of cases is referred to and relied upon by'the counsel for the city, in which the right of municipal governments to interfere to some extent with private property in the execution of police regulations for the safety ór health of the public has been acknowledged. But none, I think, go to the extent of authorizing private property to be taken or destroyed for the public benefit, without compensation made therefor.” Allen, J., in Clark v. Mayor, 13 Barb., 36. The police power has never yet been fully described nor its extent limited further, at least, than this ; it is not above the constitution, but is bounded by its provisions, and if any franchise or liberty is expressly protected by any constitutional provision, it •cannot be destroyed by any valid exercise by the legislature or the ■executive of the police power.” Beckham, J., in People v. Gillson, 109 N. Y., 400; 16 St. Rep., 185. “The limit to the exercise of the police power can only be this : the legislation must have reference to the comfort, the safety or the welfare of society, and it must not be in conflict with the provisions of the constitutionBetter's Dwarris, 458. “ I have no doubt but what the property and rights of the plaintiff, the existence of which are at stake in this case, are shielded by the constitution from the threatened .aggressions of the defendant, and that it is the duty of courts implicitly to assert and maintain the fundamental law in respect thereof, so that every person may know that the rights of property exist by no uncertain tenure, and that the arm of the law is strong to protect, and will protect, every citizen in the enjoyment of life, liberty and property.” Sheldon, J., in Babcock v. The City, 1 Sheld., 344, aff’d 56 N. Y., 268. “ The police power, however broad and extensive, is not above the constitution. When it speaks, its voice must be heeded. It furnishes the supreme law, the guide for the •conduct of legislatures, judges and private persons, and, so far as it imposes restraints, the police power must be exercised in subordination thereto. * * * The power is not without limitations, and in its exercise the legislature must respect the fundamental rights guaranteed by the constitution. If this were otherwise the power of the legislature would be practically without limitation.” Earl, J., in Matter of Jacobs, 98 N. Y., 108, 110; People v. Marx, 99 N. Y., 377. “ It is the acknowledged right of the states of the union to control their purely internal affairs, and in so doing to protect the health, morals and safety of their people by regulations that do not interfere with the execution of the powers of the general government, dr violate rights secured by the constitution of the United States. * * * If a statute purporting to have been enacted to protect health, the public morals or the-public safety * * * is a palpable invasion of rights secured, by the fundamental law, it is the duty of the courts to so adjudge,' and thereby give effect to the constitution.” Harlan. J., in Mugler v. Kansas, 123 U. S., 659, 661.

As the statute in controversy involves a deprivation of property, without the consent of the owners and without compensation, it is void, and so inoperative to' impose the penalty for the enforcement of which the action is instituted.

III. Assuming, for argument, that the expenditure exacted of defendant would not be a taking of property if imposed in due exercise of the police power, the question is, was the act in controversy a legitimate exercise of that power ?

Hot every pretense of solicitude for the welfare of the community, apparent on the face of a statute, will validate it as an. exercise of the police power. In any cáse the question is still before the court whether, in its scope and nature, the act be a true-exertion of the police power of the state. Ho matter how plausible the professions of the statute, nor how benevolent in motive or beneficent in effect, to be a legitimate act of police .power it-must, if the public health be its ostensible object, exhibit some relation to that object and some tendency to promote it. “ Courts-must be able to see, upon perusal of the enactment, that there is-some fair, just and reasonable connection between it and the public health. Unless such relation exist, the enactment cannot be upheld as an exercise of the police power.” People v. Gillson, 109 N. Y., 401; 16 St. Rep., 185. “ Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not. final and conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the-courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health.” Matter of Jacobs, 98 N. Y., 110; Mugler v. Kansas, 123 U. S., 661; Powell v. Pennsylvania, 127 id., 686. “Powers which can only be justified as an exertion of the police power of -the state,, and which would otherwise be clearly prohibited by the constitution, can be such only as are so clearly necessary to the-safety, comfort and well being of society, or so imperatively required by the public necessity, as to lead to the necessary and satisfactory conclusion that the framers of the constitution could not, as men of ordinary prudence and sagacity, have intended to prohibit their exercise in the particular case, notwithstanding the language of the prohibition would otherwise include it.” Christiancy, J., in The People v. The Jackson, etc., Co., 9 Mich., 285. “We have been unable to find in any of the decisions the doctrine that legitimate police regulations will extend to matters conducive to the convenience of the public, when they conflict with the recognized rights of other parties.” State v. Noyes, 47 Maine, 189, 213.

Applying the criterion thus propounded to the statute in questian, in connection with the facts of the case, it is evident, beyond ■dispute, that the statute is not a legitimate exercise of the police power of the state.

It is not pretended that the houses of defendant, in their present condition, constitute a nuisance, or that in any way or to any degree they impair the health either of the public or of the occupants. On the contrary, the uncontroverted proof is that the lack of water on the floors is “notbad for the health of the tenants.” There is no evidence, nor can the court judicially know, that the presence and distribution of water on the several floors will conduce to the health of the occupants; but so far the contrary, that sanitary science now admonishes of the danger to health from the possible escape of noxious gases.

The uncontradicted proof shows already a sufficient and easily accessible supply of water on the premises, so that the required ■conduct of water up to the floors serves no other purpose than the convenience of the tenants. ' There is no necessity for legislative compulsion on a landlord to distribute water through the ■stories of his building, since, if tenants require it, self interest .and the rivalry of competition are sufficient to secure it.

The consequences involved in a principle furnish an infallible test of its validity. When it leads necessarily to an absurd re.sult, it cannot be sound. Now, if it be competent for the legislature to impose an expense on a landlord in order that tenants may be furnished with water in their rooms instead of in the yard or basement, at what point must this police power pause ? If the convenience of tenants be a sufficient reason for the exercise of the power, why may it not be employed to compel the accommo■dation of tenants with the appliances of gas or electric light, or with a supply of fuel as well as of water, or with any, even the most costly, accessories of comfortable life in a tenement house? •Once discard the recognized, condition that the thing required be reasonably necessary and apparently conducive to health, and no conceivable limitation restrains the power of the legislature to impose burdens upon property for the benefit of others.

From the facts in evidence the inevitable conclusion is this: Either the statute is applicable to the case, or it is not. If applicable, then the statute is an unwarrantable exercise of the police power. Authorities supra. If inapplicable, then the statute gives the plaintiff no right to the penalty for which it sues. The City of Rochester v. Simpson, 57 Hun, 36; 32 St. Rep., 732. In either event no cause of action is available against the defendant, and the verdict is invalid.

The conclusion to which the legal argument conducts us is all the more satisfactory because of its consistency with the genius of ■our institutions and its "tendency to strengthen the securities of property, effects of which a contrary conclusion would be plainly destructive. The postulate upon which the legislation in question proceeds is the duty of government to exercise a paternal protectorate over the people; whereas the distinguishing characteristic of the American Commonwealth is that it restricts the operation of government to the narrowest possible sphere, and reposep upon, individual intelligence and effort for the development of a free and fruitful civilization. A conclusion contrary to the present decision would involve the essential principle of that .species of socialism under the regime of which the individual disappears, and is absorbed by a collective being called The State, a principle utterly repugnant to the spirit of our political system, and necessarily fatal to our form of liberty.

Exceptions sustained and new trial ordered, costs to abide the event.

Bookstaver, P. J., and Bischofe, J.', concur.


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    Pauline Kahn, Resp’t, v. Joseph S. Lesser, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    •Judgment—Robeign—Unauthobized appeabanoe.
    In an action, upon a foreign judgment, the record of which recites a general appearance for defendant, where the only evidence in support of the defense that such appearance was unauthorized is that of the defendant, the question is one for the jury to determine.
    Appeal from j udgment of the general term of the city court affirming judgment on a verdict. Action on a judgment of the superior court of the county of' Milwaukee, state of Wisconsin, rendered against Joseph S. Lesser, Isaac Lewis and Alexander ■"Cable as copartners. The record of the case in the Wisconsin court recites the appearanceof the defendants by attorneys. Lesser alone resists this action, and he alleges that he was not served in the Wisconsin suit, and that the appearance of the attorneys therein for the defendant» was officious and unauthorized. In addition to the recital in the record from Wisconsin the evidence shows that in fact the defendants did purport to appear by at- - torney in the action. On the other hand the defendant herein testified, without contradiction, that he did not retain the attorneys, ■and never authorized them to appear in his behalf. In the Wisconsin action an attachment was-levied on the property of the defendants. Pending the action defendant was a resident of the state of Hew York.
    On the conclusion of the evidence the defendant moved for a nonsuit and a direction in his favor, on the ground that the ■court in Wisconsin did not acquire jurisdiction of his person, and that so the judgment of that court was ineffectual to bind him; and to a denial of the motion he duly excepted. Witli an entirely unexceptionable charge, the court below submitted to the jury whether the Wisconsin court acquired jurisdiction of the defendant; and upon that issue they found for the plaintiff

      Paul Jones, for resp’t; Arthur Furher, for app’lt.

       Affirming 40 St. Rep., 866.

   Pryor, J.

The single question for determination is, whether the evidence was sufficient to take the case to the jury on the issue as to the jurisdiction of the Wisconsin court over the person ■of the defendant.

A judgment in Wisconsin proceeding by attachment alone would be wholly ineffectual to sustain the action. Cooper v. Reynolds, 10 Wallace, 308, 318; Cochran v. Fitch, 1 Sandf. Ch., 142.

Nor is the other position of the respondent one whit more tenable; namely, that the appellant was precluded to impeach the Wisconsin judgment because by the-federal statute it has-the same effect in this state as is imparted to it by the law of the forum. The argument is vicious as begging the question by assuming the validity- of the judgment in Wisconsin; w,hereasr for defect of jurisdiction the judgment’would be a nullity in. Wisconsin, and so of no efficacy there or elsewhere. Christmas v. Rufell, 5 Wallace, 305; Starbuck v. Murray, 5 Wend., 148; Kerr v. Kerr, 41 N. Y., 272, 275; Hoffman v. Hoffman, 46 id.,. 30; Ferguson v. Crawford, 70 id., 253, 262-3.

Neither can the judgment under review be upheld by the doctrine of Denton v. Noyes, 6 Johns., 296; Hamilton v. Wright, 37 N. Y., 502, and Brown v. Nichols, 42 id., 26, namely, that a judgment obtained upon the unauthorized appearance of an attorney is conclusive on the party in a collateral proceeding, for the principle of those cases has been limited in operation by the court of appeals to domestic judgments. Vilas v. R. R. Co., 123 N. Y., 441, 456-7; 34 St. Rep., 67.

And so the question recurs: the defendant not having been served with process in the Wisconsin action, non-resident in that state, was the evidence of an unauthorized appearance for hifn by the attorneys whose appearance the record recites, and who didin fact appear, so conclusive as to justify tho court in withdrawing the issue from the jury ?

Undoubtedly the presumption of jurisdiction prevails in favor of superior courts; but the presumption may be repelled by extrinsic- evidence, and even the recital of an appearance in the record is not conclusive on the party. Ferguson v. Crawford„ 70 N. Y., 253, 257.

Then the case stands thus: In support of jurisdiction in the Wisconsin court, we have the legal presumption and the record recital; while in impeachment of the jurisdiction we have the uncontradicted testimony of the appellant that he never authorized an appearance on his behalf. The presumption and the recital constitute plenary proof of jurisdiction, unless and until their force be overcome by contrary evidence. The fact that appellant’s-co-defendants in Wisconsin did not authorize the appearance is no-corroboration of the allegation that he did not authorize it; for,, the partnership being dissolved, they had no power to retain an attorney for him. It results, therefore, that since the evidence of no appearance by appellant consists exclusively of his own testimony, an issue was raised for the jury; and as we have no jurisdiction to estimate the weight of proof in the court below, our only alternative is t,o affirm the judgment. Kavanagh v. Wilson, 70 N. Y., 177; Gildersleeve v. Landon, 73 id., 609; Wohfahrt v. Beckert, 92 id., 490. Notwithstanding the head note, 102 N. Y., 93; 1 St. Rep., 161, the doctrine of these cases is not impugned;. for, in Kelly v. Burroughs, page 95, it appeared that there “ was no conflict of evidence, or anything, or any circumstance from which ■an inference against the fact testified to by the party could he drawn.”

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


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    Vincent A. Witcher, Resp’t, v. Gilbert E. Jones, Treasurer, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Libel—Mitigation—Evidence.
    In an action for libel, where exemplary damages are demanded, it is competent to prove, in mitigation, previous publications of the libelous matter by others, known to defendant at the time of his publications, and relied upon by him as authority. But evidence of contemporaneous publications by others does not tend to disprove malice and is inadmissible.
    "3. Same.
    It is libeloiis per se to publish the statement of a man that “ he went to Utah, where he joined the Mormons, and at one time had a good deal of influence in church matters at Salt Lake.”
    Appeal from judgment on verdict, and from an order denying new trial.
    Action for libel against defendant as treasurer of the New York Times.

      Samuel B. Paul and Howard B. Bayne, for resp’t; B. F. Einstein, for app’lt
   Pryor, J.

For reversal of the judgment, appellant relies on three grounds:

I. Insufficient proof of publication by the defendant company.

The issue of the newspaper containing the article, and its pro•duction in court, constituted complete proof of publication; and, by identity of name, control and locality of office, a prima facie ■connection of the company with the newspaper, and publication by the company, were so shown as to require contradictory evidence from the defendant. As the defendant had peculiar means •of repelling the proof of publication, and neglected so to do, we must accept the fact as satisfactorily established. Wylde v. R. R. Co., 53 N. Y., 156; Stearns v. Field, 90 id., 640.

II. Refusal of the court to admit -evidence of other contemporaneous publication of the libel.

The contention is, that such contemporaneous publication was ■competent in mitigation of damages.

In an action for defamation, two classes of fact are pleadable and provable in mitigation" of damages: First, such as impeach the character of the plaintiff; secondly, such as tend to negative ■the malicious motive of the defendant.

_ As to the first, since the plaintiff sues for loss of character, and since the amount of that loss depends upon the value of the character, it is a self-evident proposition that the defendant’s previous knowledge of that character is an altogether irrelevant circumstance.

As to the second kind of proof, the case is obviously otherwise. In the absence of privilege,, the law conclusively implies malice, i. e., want of legal justification, in the publication of an actionable libel; and, in any event, the plaintiff is entitled to full compensation for his injury. But, when beyond mere indemnity, the plaintiff seeks to recover exemplary damages, the fact of actual malice in the publication becomes a relevant and material consideration. Hence, in defeat or niitigation of exemplary damages, the defendant may introduce any evidence of which the-legitimate tendency is to show that he was not actuated by a. wanton or malicious motive; as, for instance, that the libel was-uttered negligently or against his will, or in belief of the apparent truth of the defamatory charge. If, therefore, the defendant uttered the libel in good faith upon the authority of others, that circumstance manifestly tends to disprove a malicious motive in the publication; and, accordingly, in mitigation'of damages, the defendant may always show other publications known to Mm at the time of Ms repetition of the defamatory matter. But, obviously, his-motive in the publication could not have been affected by a fact of which he was 'then ignorant, and hence the palpable absurdity of admitting such fact in disproof of malice. Hatfield v. Lasher, 81 N. Y., 246; Willover v. Hill, 72 id., 36; Morey v. Morning Journal, 123 id., 207; 33 St. Rep., 49.

IH. Refusal of the court to withdraw one of the alleged libelous-charges from the consideration of the jury.

To appropriate the force of appellant's contention upon this-point, it is requisite to read the entire libel, as follows:

“Lynched for Wife Murder.
“Wheeling, West Ya., March 5th.—A special to the Register from Credo, ÍYayne county, says a report has just reached there from across the Yirginia line that Col. A. Y. Witcher, well-known, throughout the lower end of the state as a politician and orator,, has been lynched by a mob for the murder of his wife. No details of the crime are given, but the story is plausible when taken, in connection with facts known in Wayne county at just about the outbreak of the war. When hostilities began he entered the-Confederate service, and rose to the rank of colonel. When his-time expired, he commanded a volunteer regiment of guerillas on the Yirginia and Kentucky border. The war ended, he went to-Utah, where he joined the Mormons, and at one time had a good deal of influence in church matters at Salt Lake. He returned to West Yirginia about six years ago. He has been married five-times, the last marriage being a match not after the colonel’s choosing. The report has created .much excitement in Wayne-county.”

On the trial the plaintiff contended that, besides its general defamatory tenor, the article contained five distinct'libelous charges ; namely, that plaintiff was lynched; that he murdered his "wife ; that he was a guerilla during the,war; that he was a Mormon ; and that he was compelled to marry his present wife.

As to the Mormon matter, defendant requested the court to rule that it was not libelous per se, and to withdraw it from the-jury. The request to withdraw was refused; but the court charged : “ If that language is ambiguous, or if the jury find that it imputes a criminal offence, such as that he was engaged in polygamy, then it is libelous, but if not, it is not libelous.’’

Upon 'these rulings, the appellant alleges error; first, in refusing to withdraw -the charge from the jury; and secondly, in submitting the meaning of the charge to the jury.

As to appellant’s first proposition, it by no means follows from the authority he cites, Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379, that, if the charge be not prima fade libelous, it must be withdrawn from the jury, The point there adjudicated was, that a distinct libel disproved by conclusive and uncontradicted evidence, should not be submitted to the jury; but nothing in the opinion of the court imports a departure from the uniform and inveterate rule that, when the terms of an alleged libel are ambiguous or equivocal, their meaning is a matter for determination by the jury. . Undoubtedly, if the language of the charge were incapable of a defamatory imputation, then, indeed, it was the duty of the court to dismiss it from consideration by the jury. On the other hand, h .wever, although when the charge imports a libel per se it is the right of the court so to instruct, yet, if instead the question be submitted to the arbitrament of the jury, manifestly the error is not of prejudice to the defendant, and is inoperative to invalidate the judgment.

We are of opinion that upon both points, namely, the libelous nature of the imputation and the submission to the jury, the learned trial judge, with characteristic care and caution, expounded the law most indulgently for the defendant.

1. The court would have been justified in a peremptory instruc: tian that the charge was per se a libel. What was it? That the war ended, he went to Utah, where he joined the Mormons, and at one time had a great deal of influence in church matters at Salt Lahe.”

By all authorities any unprivileged publication of which the necessary tendency is to expose a man to hatred, contempt or ridicule, is a libel; and in solving the question whether a paper be libelous, “ it is to be understood by the court in the sense in which the world generally would understand it, giving to the words their ordinary meaning, and in understanding what was meant and conveyed the scope and meaning of the whole article is to be considered.” Daly, Ch. J., Williams v. Godkin, 5 Daly, 499, 501, 502. Accepting the word Mormon in its ordinary sense, in the sense current in the community, what meaning does it convey? ■Can it be doubted that it imports a disparaging imputation, and that its necessary tendency is to expose the object of it to hatred, contempt and ridicule ? It is not a colorless appellation ; it is not a flattering appellation; it is an injurious appellation, of which the necessary effect is to.“ impair reputation and lowér one to whom it is applied in tire esteem and opinion of the community ;” and hence, is per se a libel ? 5 Daly, 502. And why so ? Because of the ideas popularly associated with the word; religious imposture, a hierarchy in government incompatible with civil and religious liberty, and the profession and practice of polygamy, an institution abhorrent to the instincts ana offensive to the morals, of the American people. If the fact were material, by reference to public history, of which the court takes judicial notice, Swinnerton v. Columbian Ins. Co., 37 N. Y., 174; by reference to public statutes, of which all tribunals have cognizance, 9 U. S. Statutes at Large, 76; Reynolds v. United States, 98 U. S., 145, and by recourse to the “ public notoriety.” which dispenses with specific proof, 1 Grreenlf. on Ev., § 6; Mormon Church v. United States, 136 U. S., 48, 49, it might be established to demonstration that polygamy, as well in conduct as in creed, is a spiritual element of Mormonism. But the fact is immaterial, and it suffices for the argument that in the popular conception Mormonism is inseparably associated with the doctrine and practice of polygamy, for then to be deemed a Mormon is to be regarded as guilty in thought and purpose, at least, of “ a crime against the law and abhorrent to the sentiments and feelings of the civilized world. ” Bradley, J., 136 U. S., 48. Surely, in this community such an-opinion of the plaintiff could not fail to injure his reputation, by exposing him to hatred, contempt and ridicule, if, indeed, contempt and ridicule were not lost in the more malignant impulses-of execration, and such an opinion of the plaintiff the defendant propagated by publication of the libel in controversy.

In Bailey v. Kalamazoo Pub. Co., 40 Mich., 251, the court took judicial notice of the defamatory meaning of the term “Beecher business,” when applied to a clergyman; and in Cerveny v. Chicago Daily News Co., 28 N. E. Rep., 692, it was held libelous to publish of a person that he is an “Anarchist.”

But, that defendant meant to impute to plaintiff approval, at-least, of polygamy, is corroborated by the context of the charge. It is alleged that he not only “ joined the Mormons,” but that he acquired “ a great deal of influence in church matters at Salt Lake," implying an earnest adoption by plaintiff of the creed of Mormonism, and an active participation in its councils. Coupling the charge in question with the statements of his eminence in the-Mormon church, of his having been lynched for the murder of his wife; of his having been married five times, and of his last marriage having been compulsory, it is impossible to resist the conclusion that the accusation of joining the Mormons was intended to load plaintiff with the reproach of lawless and profligate indulgence in lustful gratifications.

2. But, the learned trial judge did not rule the charge to be libelous as matter of law; he submitted the meaning of the charge to the jury, with the instruction that unless it imputed a. criminal offense it was not defamatory. What more charitable construction of the law could the court have employed for the protection of the defendant ? It is not for defendant to complain that the court told the jury, in effect, that an imputation subjecting plaintiff to hatred, contempt and ridicule was ineffectual to-a verdict in his favor.

The charge being susceptible of a defamatory construction, that the court did not err, as against defendant at least, in referring its meaning for decision by the jury, is too well settled for further argument. Bergmann v. Jones, 94 N. Y., 51, 52; Sanderson v. Caldwell, 45 id., 398; Lewis v. Chapman, 16 id., 369.

Judgment and ordered affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.