text:
    William D. Bailey, Resp’t, v. Rome, Watertown and Ogdensburgh Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Vbkdict—Excessive.
    A verdict, which is the result of improper influences instead of the calm and unprejudiced judgment of the jury, will be set aside.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a ne,w trial, made on the minutes of the court.

      A. M. Beardsley, for app’lt; Scripture & Backus, for resp’t
   Martin, J.

—This is the fourth time this case has been before us. Upon the first appeal, it was held by this court that the evidence was insufficient to justify the submission to the jury of the question of the defendant's negligence. 19 St. Rep. 656; 3 N. Y. Supp. 585. When here upon' the second appeal, the doctrine of the former decision was adhered to, and it was also held that the trial court erred in admitting the opinion of witnesses- as to the capacity of a brakeman to displace the brake rod when the pin was in, and whether the pin could have been lost out between Norwood and De Kalb. 29 St. Rep. 755; 8 N. Y. Supp. 780. Upon a subsequent retrial of the case, the plaintiff was nonsuited, and a judgment was entered thereon, from which a third appeal was taken. Upon that appeal the judgment was affirmed by this court, 36 St. Rep. 1019; 14 N. Y. Supp. 944, and an appeal taken to the court of appeals. That court, in considering the case, held that the trial court erred in rejecting evidence as to defects in other cars of the train besides that which occasioned the plaintiff's injury, and was “ unwilling to say * * * that there was no evidence from which a just inference might not be drawn by the jury, that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point,” and held that under the proof, as it then stood, the question of the defendant’s negligence was a question of fact, and should have been 'submitted to the jury. When we examine the evidence given on the last trial, we find no such change in it as would justify us in holding differently upon that question. We are also of the opinion that the question whether the plaintiff was free from contributory negligence was a question of fact for the jury, and that the court of appeals, by its formed decision, impliedly so held, or'no new trial would have been granted. " *

The appellant contends that a new trial should be granted on the ground thg,t the verdict is against the weight of evidence. It-might perhaps be assumed from our former decisions in this case that we have heretofore considered the plaintiff’s evidence as insufficient to entitle him to recover, but, as the court of appeals has held otherwise, we not only feel bound by the decision of that court, but are of the opinion that after four trials of the case, in which three juries have found for the plaintiff, this litigation should end, and no new trial should be granted upon this ground.

This leads to the consideration of the appellant’s claim that the damages are excessive. The jury awarded the plaintiff $16,000. The evidence discloses that the plaintiff’s leg was injured to an extent requiring its amputation about eight inches below the knee t that his right arm, lip, and leg (above where it was amputed) were cut (the lip, so that two stitches were taken in it; and the leg, from the place of amputation to his body); that it was about three weeks before he could get around any; and that the leg healed up in about four months. The plaintiff testified that he suffered pain from his injury down to the time of the trial. It also appeared that his knee joint was stiffened. Before his injury the plaintiff received $1.60 a day. On the trial he testified: “Am now a canvasser, and have been a little while. * * I have been canvassing, collecting, and delivering all the while.” Whether the employment in which he has been engaged since his injury was more or less remunerative than his employment as brakeman does not appear. It is perhaps to be presumed that, if it had been less so, that fact would have been proved. But, be that as. it may, we are of the opinion that the damages awarded in this case are excessive, and that the trial court erred in refusing to grant a new trial on that ground. It seems to us quite clear that the jury, in rendering this verdict, must have been controlled by prejudice, passion, or some other improper influence, and not by that cool, unprejudiced, and unbiased judgment that should have governed its determination. That it may have resulted from improper and inflammatory remarks addressed to the jury by the counsel for the plaintiff may, perhaps, be inferred from the charge of the court, as it will be seen that the remarks of counsel were of such a character that the court felt constrained to express its regret that the counsel for the plaintiff should have made improper remarks to the jury, and to charge it that it should not be influenced by what he said. On the two previous trials, where the plaintiff obtained a verdict, the verdicts were, respectively, for eight and ten thousand dollars. If the plaintiff is permitted to hold this judgment, and recovers the amount of it, the annual interest upon it would be $960, while, at the time of his injury, he was able to earn only about a $500 a year. Thus, the effect of this judgment is to award to the plaintiff an income during his life which is nearly double the amount he was able to earn, and still leave the principal unexpended; and this, too, although he is able to labor, and perhaps earn as much as before the injury. While recognizing the fact that this was a question for the jury, and that its verdict should not be disturbed unless there is reason to believe that the jury has been swayed or misled by improper influences, jet it seems to us so clear that this verdict was the re-result of such influences, instead of being the result of, the calm and unprejudiced judgment of 12 intelligent and fair-minded jurors, that we I'eel it to be ouj duty to grant a new trial on the ground that the damages were excessive, unless the plaintiff will stipulate to reduce the amount of the verdict to the sum of $9,-000, which, to us, seems a liberal award for the plaintiff's injuries. Several cases have been cited by the respondent’s counsel where large verdicts have been sustained, but, as the facts in each case are unlike those before us, but little aid can be derived from an examination of them. In Coppins v. N. Y. C. & H. R. Railroad Co., 48 Hun, 292; 17 St. Rep. 916 ; affirmed, 122 N. Y. 557, 34 St. Rep. 214, where the verdict was for $15,000, it was by this court reduced to $7,000 ; and the presiding justice, in delivering the opinion in that case, examined many of the cases cited by the respondent, and fully stated the principle of the authorities govefning this question, so that a detailed examination of cases, or of the principles applicable to it, would seem to be unnecessary. These considerations lead us to the conclusion that the judgment and order should be reversed on the ground that the damages are excessive, unless the plaintiff will stipulate to reduce the verdict to the sum of $9,000.

Judgment and order reversed on tire ground that the damages are excessive, and a new trial granted, on payment of the costs of ^the trial by the appellant, unless the plaintiff shall stipulate to reduce the verdict for damages to the sum of $9,000, in which event the verdict and judgment, as so modified, are affirmed, without costs to either party.

All concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Norman A. Barnes, App’lt, v. Gerrit S. Wheaton, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July, 1894.)

    Corporation—Foreign—Liability of stockholders.
    The liability of stockholders of a foreign corporation, imposed by a statute, can be enforced only in the courts, of its domicil.
    Appeal from a judgment dismissing the complaint.

      Walter S. MacGregor, for app’lt; Jenney & Marshall, for resp’t.
   Martin, J.

-—The provisions of the constitution of the state of Ohio, set out in the complaint, declare that: “Dues from corporations shall be secured, by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.”

In State v. Sherman, 22 Ohio St. 411, it was held that the legislature of that state had no power, under the present constitution, to create corporations without securing the individual liability of their stockholders, at least to the minimum amount required by the constitution; and if the act of incorporation did not secure this, either by express provision, or by requiring from the corporators or stockholders such acts, of organization or otherwise, as would subject them to the constitutional provision, the act would, be unconstitutional and void. In French v. Teschemaker, 24 Cal. 518, 539, where a similar provision in the constitution of that state was under consideration, it was held that the provision was not self-executing, but required legislation to carry it into operation. The cases of Morley v. Thayer, 3 Fed. 737 ; Fusz v. Spaunhorst, 67 Mo. 256; and Groves v. Slaughter, 15 Pet. 449,—are to the same effect. It is obvious that this provision of the constitution is not self-executing, but that its purpose was to confer upon the legislature the power, and impose upon it the duty, of securing dues from corporations by imposing upon the stockholders of such corporations as were organized under the laws of that state an individual liability, and by such other means as, in its discretion, it should deem proper, but limiting such power and discretion by. the provision that each stockholder should be made liable to an amount at least equal to the amount of the stock held by him; and we think that this provision does not, independent of a statute imposing such liability, confer upon the plaintiff any right to maintain this action. Moreover, an examination of the complaint discloses that this action was not based upon a right to recover under the provisions of the constitution, but upon the provision of the statute of that state passed in pursuance of such constitutional provision; and thus the plaintiff is bound by his complaint, which bases the action upon the statutory liability of the defendant. May v. Black, 77 Wis. 104. Therefore, in determining the liability of the stockholders of a corporation organized under the laws of that state, it is necessary to examine the statutes defining or declaring the same. The only statute which imposes or defines such liability—at least, so far as appears from the complaint—is § 3258 of the statutes of Ohio, as revised in 1890. As we have already seen, that section provides: “ The stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation.”

If there was any other statute of that state that would justify this action, upon the facts alleged in the complaint, the existence of that statute should have been set out to a sufficient extent to show that the plaintiff had a right of action uncler and by virtue of it. In an action brought upon a cause of action given by the statute of another state, the existence of the statute is a fact which must be pleaded; and it must appear that under the statute, if proved, a good cause of action exists in favor of the plaintiff against the defendant. Fagan v. Strong, 7 N. Y. Supp. 919; Throop v. Hatch, 3 Abb. Pr. 23; Debevoise v. N. Y., L. E. & W. Railroad Co., 98 N. Y. 378. A right of action against a stockholder for the debts of a corporation does not exist at common law ; and a statute which imposes upon the stockholder personal liability for the corporate debts must be strictly construed, as it is iu derogation of the common law, and cannot be extended beyond its literal terms. Chase v. Lord, 77 N. Y. 1. A party seeking to maintain an action under a statute must state every fact requisite to a cause of action arising under it. Austin v. Goodrich, 49 N. Y. 266. To state a cause of action under the provisions of § 3258, it was necessary to allege that the corporation mentioned in the complaint was either formed subsequent to the adoption of the statute, or that the stockholders of it were at the time of its passage liable under some former statute,, as that section is made applicable only to such cases. The complaint in this case contains no such allegation, and thus, we think, fails to state a cause of action against the defendant under § 3258. The statutes of the state of Ohio have not only limited the liabilty of stockholders to those of a corporation formed after the passage of that act, and such stockholders as were then liable under former statutes, but they have also provided a special remedy for the enforcement of such liability. Section 3260 of the Revised Statutes of Ohio, in effect, provides that a stockholder or creditor may enforce the liability mentioned in § 3258 by a joint action against all the holders or owners of the stock of the corporation, which action shall be for the benefit of all the creditors of the corporation, and against all persons liable as stockholders. In such an action there shall be found and determined the amount payable by each person liable as such stockholder on all the indebtedness of the corporation, and that upon such adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount paid on such indebtedness, would exceed the amount of the stock on which lie was liable. Thus the question is presented whether this statute has provided such a remedy for the enforcement of the liability imposed by § 3258 as to exclude any other remedy. In Nimick v. Iron Works Co., 25 W. Va. 184, the question of the effect and operation of this statute was considered, and it was there held that it not only conferred upon the creditors of a corporation a new right, but also prescribed the remedy whereby the same might be enforced; that the remedy so prescribed for the ascertainment and enforcement of this liability must be pursued in the courts of the state of Ohio, where the corporation was located, and by the local statutes of which alone the liability existed; and that a bill in equity to ascertain and determine tire extent of such individual liability against the stockholders of such corporation could not be sustained in the courts of West Virginia. May v. Black, 77 Wis. 101, was an action commenced in that state, on a demand for work and labor, against a corporation organized under the laws of the state of Michigan. The constitution of the latter state provides that the stockholders of all corporations organized under the statutes of that state shall be individually'liable for all labor performed for them, and that such liability may be enforced by an action in assumpsit, and a suit for such labor may be commenced against all the stockholders and the corporations jointly. In that case it was held th-t the remedy by action m assumpsit was exclusive, that the corporation must be a party, and that the remedy thus given against the stockholders could be enforced only in the courts of Michigan. In Pollard v. Bailey, 20 Wall. 526, in examining this question, Chief Justice Waite said: “The individual liability of stockholders in a corporation, for the payment of its debts, is always a creature of statute. At common law it does not exist. The statute which creates it may also declare the purposes of its creation, and provide for the manner of its enforcement.”

After discussing the provisions of the charter then under con- • sideration, he added • “ It was not only to be apportioned and collected, but the mode of apportionment and the manner of collection were specially provided for. The liability and the remedy were created by the same statute. This being so, the remedy provided is exclusive of all others. A general liability created by statute without a remedy may be enforced by an appropriate common law action. But, where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must employed.”

In Bank v. Francklyn, 120 U. S. 747, it was held that where the statutes of a state create a corporation, making the stockholders liable for the corporate debts, and provide a special remedy, the liability of the stockholders can be enforced in no other maimer in a court of the United States. In Erickson v. Nesmith, 4 Allen, 233, it was held that a creditor of a corporation established in Hew Hampshire, the stockholders of which were individually liable for its debts under the statutes of that state, could not maintain a bill of equity in Massachusetts to enforce his claim against the stockholders, although some of them lived there, and the bill was alleged to be brought in behalf of all the creditors. In Patterson v. Lynde, 112 Ill. 196, where a bill was filed by creditors of an insolvent corporation of the state of Oregon against the defendants, as stockholders, the complainants alleged the recovery of a judgment at law in Oregon against the company, its insolvency, and their inability to obtain a judgment at law in the state of Illinois, that the defendants owed large sums on their subscriptions to the capital stock of the company,—and sought a decree against them to satisfy complainants’ demand, and the court below sustained a demurrer to the bill. It was held by the supreme court that the demurrer was properly sustained, for the reason of its being impossible to acquire jurisdiction of the corporation, and the non-resident stockholders having no property there. In Lowry v. Inman, 46 N. Y 119. it was, in effect, held that where the charter of a foreign corporation makes the property of a stockholder liable for the fulfillment of the contracts of the company, and points out no mode in which its liability may be made available, the courts of other states may give effect to the provisions, and the course of proceedings must be regulated by the law of the state where the remedy is sought to be enforced. But where the effect of the charter was not to charge the property of the stockholders generally, but only to- an amount equal to their stock, upon prescribed conditions, and by a specific process, the remedy of the creditor must be sought according to the terms and by the means provided by the charter. In that case, Judge Allen said: “ Whether the obligation is imposed, and the remedy given, solely by the statute, or rests upon the assent of the stockholders to the terms und conditions of the act, the result is the same. The obligation or liability and the remedy are inseparable, and the party interested is confined to the remedy prescribed by the act, and assented to by the stockholder. If the liability rested solely upon contract, and the contract provided an adequate remedy, the parties would, be restricted to the remedy. 'Every other remedy would be excluded by necessary implication.”

After examining the statute under consideration in that case, the judge adds; “ The act provided, as the appropriate remedy, that a judgment and execution against the corporation should be a lien upon, and be enforced against, the individual property of the stockolders made liable by the act. It, in terms made the property liable upon a judgment and execution against the bank, to which the stockholders were not parties; and the property was not made liable in any other way, or by any other process. It is very evident that an independent action would not lie in Georgia against the stockholders of this corporation, for the obvious reason that an adequate remedy is provided by this act without action, and, if not, then it cannot be maintained elsewhere. * * * The remedy is necessarily confined to the sovereignty of Georgia, and ■ can have no recognition or effect beyond the boundary of that state.”

In Christensen v. Eno, 106 N. Y. 97; 8 St. Rep. 682, it was held that a remedy given by the statutes of another state to creditors of a corporation, against its stockholders, was not available here.

The principles to be deduced from these authorities, clearly, are that under the statutes of Ohio the corporation mentioned in the complaint, and all the owners and holders of its stock, and all persons liable as stockholdez's thereof, should be joined as defendants in an action to enforce the liability of such stockholders; that an independent action could not be maintained in Ohio against one stockholder alone; and that the reznedy to eizforce such liability, being specially provided by the statutes of that state, is exclusive, and not available here. We think the decision of the special term was right, and that the judgment herein should affirmed, with costs.

Judgment and order affirmed, with costs.

All concur.


author: Dykman, J.

text:
    Oliver H. Booth, Resp’t, v. Hannibal Smith et al., as Administrators, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Receiver—Partnership—Appointzment.
    A receiver of firm property will not Be appointed on plaintiff’s application, in an action by the surviving partner against the representatives of the deceased partner for an accounting, where the complaint contains no allegation showing any special necessity for a receiver, and the appointment is opposed by the defendants.
    Appeal from an order appointing a receiver of partnership property.

      Smith & Smith, for app’lts ; Frank B. Lown, for resp’t.
   Dykman, J.

—This is an appeal from an order appointing a receiver of the partnership property of M. Vassar Go. The plaintiff is the surviving member of that firm, and this action is brought to procure an accounting between him and the personal representatives of a deceased copartner in respect to the dealings of the firm, and the complaint contains a prayer for the appointment of a receiver. The complaint contains no allegation showing any especial necessity for a receiver, and the appointment was opposed by the defendants, who are the personal representatives of the deceased copartner of the plaintiff. The plaintiff presented a claim to the defendants against the estate of their intestate, of about $9,000, which they rejected, and offered to refer under the statute. The plaintiff did not accept the offer, but commenced this action. The defendants have not interfered with the plaintiff in closing up the affairs of the copartnership as surviving partner, and all the books of account and property of the firm are in his possession. The defendants declare their confidence in the plaintiff, and their willingness to allow him to exercise all the rights with which he is clothed by law as surviving partner. There is no suggestion that the property will be removed, or that it will be endangered in any way. It is in the undisputed possession of the plaintiff, with the approbation of all parties interested. Under these circumstances, we can perceive no possible necessity for the appointment of a receiver, and the order should be reversed, with $10 costs and disbursements. All concur.


text:
    Charles De Kay Townsend, App’lt, v. Emma M. Work, Impleaded, etc., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Mechanic’s lien—Cancelling lis pendens.
    Notice of Us pendens will be cancelled for unreasonable delay, where plaintiff, in an action to foreclose a mechanic’s lien, neglects for more than a year to proceed after the complaint has been dismissed by the referee as against the owner of the premises.
    Appeal from an order cancelling Us pendens.

      ■ Mortimer 8. Brown, for app’lt: Marbury & Fox (Charles Fox, of counsel), for resp’ts.
   Dykman, J.

—This is an appeal from an order directing the cancellation of the notice of Us pendens filed in the action. The action is by the assignee of a mechanic’s lien to procure the foreclosure thereof. A referee was appointed on the 29th day of November, 1892, to hear and determine the action: and the trial proceeded before him until the 29th day of March, 1898, when the complaint was dismissed, as against the defendant Emma M. Work, the owner of the premises. After such dismissal, no lien could be established against the property ; and the only reason for the continuation of the action was to enable the plaintiff to appeal from the judgment to be entered upon the report of the referee, when it should be made. In that situation the plaintiff was required to use active diligence to bring the trial to a close, to the end thatanappeal could be taken. Instead of activity, there was a delay of one year before the order was made from which this appeal is taken. In the meantime the plaintiff received an admonition from the court when the order for the cancellation of the Us pendens was denied, in December, 1892, with leave to renew the motion unless the plaintiff proceeded diligently with the action. We think the plaintiff has unreasonably neglected to proceed in the action, within the intention of § 1674 of the Code of Civil Procedure, and that the order should be affirmed, with $10 costs and disbursements. All concur.


text:
    Fred Baker, Resp’t, v. Edward Brundage, Def’t. Charles Collins, App’lt, v. Same, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Supplementary proceedings—Irregularities—Who can object.
    The judgment debtor alone, and not another judgment creditor, can object to irregularities in the appointment of a receiver.
    Appeal from an order denying a motion by plaintiff in second action to vacate supplementary proceedings had by plaintiff in first action.

      L. S. Sterritt, for app’lt; A. H. F. Seeger, for resp’t.
   Dykman, J.

—The plaintiff in the first of these actions obtained a judgment against the defendant therein, on the 16th day of January, 1893, for $1,145.90, and an execution was issued thereon to the sheriff of Orange county on the same day. On the 27th day of July, 1893, proceedings supplementary to execution were instituted upon the judgment. The affidavit upon which such proceedings were based stated that the execution upon the judgment had been returned unsatisfied, but the fact was otherwise. The judgment-debtor was examined under the proceedings, and a receiver was appointed by his consent. On the 20th day of November, 1893, the plaintiff in the second action obtained a judgment against the defendant, for $493, and execution thereon was issued to the sheriff of Orange county, which was returned unsatisfied on the same day. Thereafter, on the 8th day of February, 1894, proceedings supplementary to execution were instituted upon that judgment, which were adjourned to afford time for a motion on behalf of Collins, the plaintiff in the second judgment, to set aside the order appointing a receiver in the first action, upon the ground that the execution issued upon the judgment therein had not been returned at the time when the proceedings were commenced. The motion was denied, and an appeal has been taken from the order of denial. It is unnessary to examine the irregularities set up by the appellant, because none but the judgment-debtor can take advantage of them. Underwood v. Sutcliffe, 10 Hun, 453, and cases cited. The defendant himself has waived all irregularities by consenting to the appointment of the receiver in the first action.

The order should be affirmed, with §10 costs and disbursements.


text:
    Albany City National Bank, Resp’t, v. Hudson River Brick Manufacturing Company, Impleaded, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Pleading—Complaint—-Demurrer.
    A complaint in an action to foreclose a mortgage, which alleges that one of the defendants has or claims an interest in the mortgaged property, shows that he is a proper party.
    Appeal from an interlocutory judgment overruling a demurrer to the amended complaint.

      Lent & Herrick, for app’lt; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an interlocutory judgment overruling a demurrer to the complaint The action is for the foreclosure of a chattel mortgage, and the allegation in respect to the brick company is that it has, or claims to have, some interest in the mortgaged property. The brick company demurred to the complaint on the ground, that it failed to state facts sufficient to constitute a cause of action against it. The statement already recited was sufficient to show that the brick company was a proper party to the action, and it is not necessary for us to determine the relief to which the plaintiff is entitled under that allegation. The defendant against whom it is made must protect its interest, and in case of failure to do so the complaint is sufficient to enable the plaintiff to take judgment of foreclosure and sale, as against all rights which are subordinate to the mortgage.

Our conclusion is that the judgment should be affirmed, with costs.


author: Brown, P. J.

text:
    Arthur I. Griggs, Pl'ff, v. John S. Brooks, Def't.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Estoppel—Jurisdiction op court.
    A party, who successfully resists an objection, made by the adverse party, that the court has no jurisdiction, cannot afterwards question such jurisdiction.
    Motion by Danforth Becker to vacate a judgment and order of the general term, entered in favor of plaintiff on June 3, 1881.

      Frederick A. Ward, for the motion; Estes, Barnard & Tiffany, opposed.
   Brown, P. J.

—Upon the commencement of this action, Dan-forth Becker was the attorney for the plaintiff. In November, 1881, the plaintiff made application to the court for leave to substitute a new attorney in Becker’s place. That application was granted upon condition that the plaintiff give a bond to pay any sum found to be due Mr. Becker. The bond was given, and a referee appointed to determine the amount due to the attorney for costs, counsel fees and disbursements. Both parties appeared before the referee, and the question of the attorney’s compensation was litigated. The referee made his report, and it was confirmed, with some modifications, upon Mr. Becker’s motion. He was allowed two motion fees as costs, and, as disbursements, the referee’s fees, stenographer’s fees, witness fees, and expense of serving subpoenas. The plaintiff was directed to pay such compensation, and costs and disbursements, within ten days; and, in default of payment, Becker had leave to apply to the court for such process to enforce payment as the court should award. The plaintiff appealed to the general term, where the order of the special term was reversed, and upon such reversal the plaintiff was allowed the same costs as had been allowed Becker by the special term, together with his disbursements on the reference, bis costs and disbursements upon the appeal, and an extra allowance of $100; and it was directed that he have judgment for such amounts, to be taxed by the clerk, and, costs having been taxed, judgment was thereupon duly entered. An appeal to the court of appeals was taken from this order by Mr. Becker, but subsequently withdrawn. Thereafter, Mr. Becker removed from this state to Wisconsin, and in 1892 the plaintiff sued Becker in the superior court of Milwaukee county, in that state, upon the judgment entered against him; and recently the supreme court of that state has decided against Beckef, and directed judgment in favor of the plaintiff for the amount of the judgment rendered against him in this court, with interest.

The motion now made should be denied. The judgment rendered in this court has been permitted to stand unquestioned for upwards of 10 years. No fraud or mistake is alleged against it. Neither is there any claim or pretense that Mr. Becker did not understand its full scope and effect. Having assailed its validity in the courts of Wisconsin, and been finally beaten, he now returns to this court to attack its jurisdiction, and the regularity of its procedure. It is too late now to raise these questions. The record shows that upon the hearing of the motion to confirm the referee’s report the plaintiff questioned the jurisdiction of the court on that proceeding to determine the amount due to Becker, and the objection was overruled. Having then successfully opposed that contention, and caused the court, upon his motion, to confirm the report, he cannot now, when the final decision has gone against him, be permitted to assert that the objection was well taken. With the exception of the allowance of $100, the order of the general term meted out to the plaintiff the same justice which at the special term had b.een awarded to the attorney ; and, while I am of the opinion that the general term had no power to grant the extra allowance, the order has stood unquestioned too long to now change it. Mr. Beclcer was not bound to accept the conditions of the order, and submit his claims to the determination of the referee. He might have brought an action for the sum due him, had he so desired. But the referee was appointed, and the report confirmed, upon his motion. He thus acquiesced in the proceedings, and submitted himself to the jurisdiction of the court, and it does not lie with him now to question the power which he invoked in his own behalf. The power of the court to change an attorney upon the application of the client is not debatable. It is provided for by rule 10 of the general rules of practice. The court also has power, upon the application of the attorney, to determine the compensation to be made to him, in the summary manner adopted in this case. Code Civ. Proc § 1015; In re Knapp, 85 N. Y. 284-297: Greenfield v. Mayor, 28 Hun, 320. And, upon the determination of the amount due, judgment may be awarded, therefor to the successful party. Austin v. Rawdon, 42 N. Y. 155 ; Greenfield v. Mayor, supra; Rule 27 General Rules of Practice. There is no merit in the application, and it is denied, with costs.


author: Cullen, J.

text:
    The People, Resp’t, v. John Eberspacker, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Trial—Criminal law—Denial op risht to site bail.
    The denial oí defendant’s privilege to give bail before a magistrate in the county of his arrest does not affect the validity of his subsequent trial and conviction.
    Appeal from a judgment of conviction for an assault.

      Horace D. Hufcut, for app’lt; J. Morschauser, for the People.
   Cullen, J.

—This is an appeal from a judgment of the court of sessions affirming the conviction and sentence of the defendant by a court of special sessions held by the recorder in the city of Poughkeepsie. On a complaint against the defendant for assault iu the third degree, a warrant was issued by the recorder. The defendant was arrested in Westchester, county,—the warrant not being properly indorsed,—and was denied his request to be taken before a magistrate of that county to give bail. On being brought before the recorder, he asked his discharge on the ground of the illegality of his arrest, and the denial of his privilege to give bail before a magistrate in the county of his arrest. This application for discharge was denied, and thereupon the defendant pleaded not guilty, and was subsequently tried, convicted, and sentenced. The only objection to the trial and judgment taken on his appeal is the illegality of the defendant’s arrest.

We think that the point as to the defendant’s arrest does not affect the validity of his trial and conviction. The complaint was made, and a warrant properly issued, and the court had jurisdiction of the offense charged. It was therefore authorized to try and determine the complaint against the defendant whenever lie might be brought before the court The general rule is that it is no defense to a criminal prosecution that the defendant was: illegally or forcibly brought within the jurisdiction of the court. In civil prosecutions the force or fraud used against the defendant in that respect is a good defense only against those who áre parties to the fraud or force. Adriance v. Lagrave, 59 N. Y. 110. But this rule, as immunity from arrest, has no application to criminal offenses. Ex parte Lagrave, 45 How. Pr. 301. The same principle was held in People v. Rowe, 4 Parker Cr. R. 253. See, also, U. S. v. Caldwell, 8 Blatchf. 131, Fed. Cas. No. 14,707 ; U. S. v. Lawrence, 13 Blatchf. 300, Fed. Cas. No. 15,573. In Croker on sheriffs (page 35), it is said : “In general, where one is liable to be detained on a criminal charge, the court will not inquire into the manner of his capture, but hold him to answer thereto, and leave the accused to his remedy against those who have acted under void process, or exceeded their authority.”

This case is to be distinguished from that of People v. Shaver, 4 Parker, Cr. R. 53. In that case the recognizance was held void because taken by a justice of the peace in Fulton county for appearance in Montgomery county sessions. The dictum that the recognizance could be avoided because the arrest 'in Montgomery county was illegal was not necessary to the decision of the case, and seems opposed to the current of authority. But there is a marked distinction between the power of a magistrate to hold on examination, and that of a court which has acquired jurisdiction of the charge to try. The first is merely a proceeding to detain for trial, if indictment be subsequently found ; and it may be that such a detention is to be considered a continuance of the original arrest, but such a principle would not apply to the trial court.

The judgment of the court of sessions, appealed from, should be affirmed.

All concur.


author: Cullen, J

text:
    George W. Johnson, Resp’t, v. Hardwood Door and Trim. Company, Def't. Herbert E. Millhollen, Junior Attaching Creditor, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Attachment—Vacation—Merits oe action.
    On motion, by junior attaching creditor, to vacate a senior attachment, the court will not pass upon the merits of the action.
    Appeal from an order denying a motion to vacate an attachment.

      Robert F. Little, for app’lt; Frederick P. Bellamy, for resp’t.
   Cullen, J

—This is an appeal from an order denying the motion of the appellant, a junior attaching creditor, to vacate the plaintiff’s attachment. The action is on contract, and the defendant a foreign corporation. The appellant sought to vacate the attachment on proof by affidavit that the original consideration, out of which the obligation in suit sprang, was the purchase by the defendant, from plaintiff's assignor, of certain shares of the defendant’s own capital stock; and it also, by proof, showed that such a purchase was, by the law of Pennsylvania (the domicile of defendant), void. The motion was denied on the ground that the court would not, on such an application, pass upon the merits of the action. We think that this position was correct. The general rule is that on a motion to vacate an attachment the court will not try the cause itself, and determine whether the plaintiff can succeed or not. Brown v. Wigton, 45 St. Rep. 135 ; 18 N. Y. Supp. 490 ; Sterns Paper Co. v. Johnson, 18 Id. 490; Rowles v. Hoare, 61 Barb. 266. There are some exceptions to this rule, but this cause plainly is not one. On the contrary, the rule should here be given full force. The defendant is a foreign corporation, and has not appeared in the action. If the attachment should be vacated, the plaintiff will not only be deprived of his security, but also of the right to try his cause of action, for the court has acquired no jurisdiction of the defendant but by the attachment. The rights of the appellant can be entirely protected by another course. Under the authority of Lee v. Pfeffer, 25 Hun, 97, he may apply to intervene in this action, and, on being made a defendant, contest the validity of the plaintiff’s claim in the ordinary manner, by answer and trial.

The order appealed from should be affirmed, with $10 costs and disbursements.

All concur.


text:
    Alice Crocker, Pl’ff, v. Lester A. Lewis et al., Def’ts. Def’ts Watson and Pittinger, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Lis pendens—Effect of notice.
    Under § 1671 of the Code, notice of lis pendens, in an action to restrain the violation of a covenant restricting use of land, does not give a judgment in favor of plaintiff for costs priority over a mortgage on the land, given and recorded after the filing of such notice, but before the rendition of such judgment.
    Appeal from an order distributing surplus moneys on foreclosure of a mortgage.

      J. Herbert Watson (Josiah T. Marean, of counsel), for app’lts ; Rufus T. Griggs (W. C. Beecher, of counsel), for resp’t Lester A. Lewis.
   Dykman, J.

J. —This was a proceeding to determine disputed claims to the surplus money arising from the sale under a judgment in an action to foreclose a mortgage. The controlling facts are these: On the 30th day of April 1890, the defendant G-olIner executed a mortgage to the plaintiff, covering certain property situated on Union street, in the city of Brooklyn. At this time. Grollner had made a restricted agreement with the defendant Lester A. Lewis, whereby he had promised,- for the consideration of $6.000, not to build flats or apartment houses in that neighborhood ; but after he had obtained the title to the property in question he commenced the construction of flats thereon, in violation of that agreement. Lewis began an action in the city court of Brooklyn to restrain Gollner from the violation of his agreement, and to enforce his restrictive easement upon the property. The plaintiff’s mortgage was recorded on the 1st day of May, 1890, and he filed his Us penderis in that action against the property on the 5th day of May, 1890. Mortgages for $9,000 to the defendants Watson and Pittinger were made by Gollner and his wife upon the same property several months after the commencement of the action by Mr. Lewis, and the filing of his Us pendens therein ; one of them being dated March 2, 1891, and recorded March 8, 1891, and the other being dated April 4, 1891, and recorded April 6, 1891. There is due on these mortgages the sum of $7,442.52, with interest. Gollner having made default in his payment upon the mortgage to the plaintiff, she brought this action to foreclose the same, making Lewis and Watson and Pittinger parties defendant. Ro answer having been put in, judgment of foreclosure and sale was entered October 20, 1891, and a sale of the premises -was had thereunder. At this time, Lewis had upon the record no rights in this property, the city court having dismissed his complaint, and his appeal was then pending in the court of appeals. The sale occurred on the 21st day of Rovember, 1891. On the 1st day of December, 1891, the court of appeals handed down a decision in the case of Lewis v. Gollner, 41 St. Rep. 178, reversing the judgment of the court below, and granting a new trial— costs to abide the event—and holding that Lewis had a restrictive easement in this property by virtue of his agreement, and was entitled to his injunction. Upon the announcement of this decision the purchaser at the sheriff’s sale under the judgment in foreclosure refused to complete his purchase, and a motion was made to compel him to do so. On this motion, Lewis, Watson, and Pittinger was represented, and the motion was denied. Thereafter, Lewis retried his action in the city court, and obtained a judgment, which was entered and docketed on the lltli day of May, 1892, perpetually restraining Gollner from erecting flats on the property, or using tlio building thereon as flats, • and awarding Lewis judgment against Gollner for $490.26 costs. Gollner appealed to the general term, and his appeal was dismissed, with $23.07 costs. Thereafter, Lewis moved in this action to open the default, as against him, and to he allowed to come in and answer, setting up his equitable rights against the property. His default was opened, and he served his answer. The case came on for trial at the special term, and resulted in a supplemental judgment, which was entered herein on the 29th day of June, 1893, directing, among other things, that the decree entered herein in October, 1891, be amended so as to direct that a sale of the premises herein be made, subject to the rights and equities of the defendant Lester A. Lewis; and it was thereby decreed that such sale should be subject to the rights, equities, and easements of the defendant Lester A. Lewis in and to said property particularly described in said judgment, as the same have been adjudged and decreed by the judgment of the city court of Brooklyn in an action wherein Lester A. Lewis was plaintiff, and Ervin G. Gollner and Ada M. E. Gollner were defendants, and that was entered and filed in the clerk’s office of said county on the 11th day of May, 1892. A resale was had of the property under the original judgment, as amended, and the supplemental judgment, and the property bid in for sufficient to pay off the mortgage herein, and leave a surplus of $69120. Claims were made against this surplus by Lewis, as a judgment-creditor under the decree, and by Watson and Pittinger, as mortgagees under their mortgages. The amount due to Watson and Pittinger under their mortgages is a lien upon the surplus, prior to any other lien, unless it be that of the Lewis judgments in the city court against Gollner for the costs of that action in that court, and that judgment for costs was docketed subsequent to the making and recording of the Watson and Pittinger mortgages.

The appeal requires the determination of the effect of a notice of pendency of action, there being no question about the sufficiency and propriety of the notice of the filing thereof. The question involved is under the control of § 1671 of the Code of Civil Procedure, which is this: “ When the notice of the pendency of an action may be filed, as prescribed in the last section, the pendency of the action is constructive notice, from the time of so filing the notice only, to a purchaser or incumbrancer of the property affected thereby, from or against a defendant, with respect to whom the notice is directed to be indexed, as prescribed in the next section. A person, whose conveyance or incumbrance is subsequently executed, or subsequently recorded, is bound by all proceedings taken in action, after the filing of the notice, to the same extent as if he was a party to the action.”

The language is plain, but it is not easily applied to this case. The theory of the doctrine of lis pendens is the public policy, that, while a suit is pending, there is to be no change in the existing state of things. It is simply a rule to give effect to the right ultimately established by the judgment. Its office is to carry into effect the familiar legal maxim, “ Pendente lite nihil innovetur" (pending the suit, nothing shall be changed). It was, therefore, out of the power of the defendant Gollner, after the filing of the notice of Us pendens, to defeat Lewis by any alienation of the property involved, by mortgage or otherwise; and Watson and Pittinger were bound by all proceedings in the action of Lewis subsequent to the filing of the notice of lis pendens, to the same extent as if they had been parties to that action. So much is clear. But how far does that rule reach? It means certainly that Gollner’s title, which these two mortgages covered, was limited by the rights, equities, and easements of Lewis. But does it also mean that the lien of the judgment for costs took effect as of the time of filing his notice, and so became prior to the lien of the two mortgages? A judgment becomes a lien by virtue of the statute, and not by virtue of the notice of Us pendens. It would seem to be inequitable to hold that the simple provision for the recovery of costs gives the judgment therefore a retroactive effect, and subordinates the lien of the mortgages thereto. , The object and requirement of the statute in relation to the effect of a notice of lis pendens would seem to be met and answered by holding the mortgage to be subsequent to the provision of the judgment for a restrictive easement in the property. Whatever the judgment determines in rem touching the property is res adjudioaia against Watson and Pittinger, as subsequent incumbrancers, but we discover no reason for holding that the judgment is to attach as a lien before it was actually docketed.

The respondents rely upon the case of Hull v. Spratt, 1 Hun, 298, but that case was entirely dissimilar to this. The facts in that case were these: “On the 2d day of September, 1870, the defendant Spratt agreed to sell certain premises to the defendant Stephenson, who was unable to perform the contract. In April, 1871, Stephenson commenced an action to compel 'the specific performance of the contract, and filed a notice of Us pendens therein on the 29th day of April, 1871. On the 10th day of June, 1872, judgment was entered in favor of Stephenson, by which it was adjudged that he should recover of Spratt $1,350 for the money he had been paid by Stephenson upon his contract, as a specific lien on the surplus money arising from a sale of the premises under a judgment for the foreclosure of a prior mortgage. On the 18th day of May, 1871, the defendant Bowne recovered a judgment against Spratt for $4,452.58, which was duly docketed, the premises having been sold under a mortgage which was prior to both of those judgments. It was referred to a referee to report as to the proper distribution of the surplus moneys arising from the sale. The referee reported in favor of Stephenson, and, this report being confirmed, the defendant Bowne appealed to the general term. The following is the first paragraph of the opinion of the general term: “ The respondent’s judgment, directed to be paid, as a prior lien to the judgment recovered by the appellant, put of the surplus moneys arising from the foreclosure sale, was i ecovered as a specific lien upon the fund. The action was brought to enforce the specific performance of a contract for the conveyance of the property, and a notice of Us pendens was properly filed in it before the appellant recovered his judgment ; and as the property was sold under the foreclosure of a mortgage, subject to the rights of either of these parties, the respondent recovered a judgment for the money he had paid upon his contract as a specific lien on the vendor’s interest in the fund. This was equitable and just, because by the contract the vendor became, in effect, the trustee of the title for the vendee. The property was equitably his, so far as the purchase-price was paid, and to that extent a judgment recovered against the vendor did not become a lien upon it.”

It was also said that the judgment of Bowne was subordinate to the action of Stephenson, by reason of the filing of the notice of Us pendens, and that, by the judgment in his favor, so much of the fund as was necessary for that purpose was appropriated to this payment So the judgment of Bowne, which was obtained about one year before that of Stephenson, was subordinated to the judgment of the latter, not by reason of the operation of the notice of lis pendens, but because, by the terms of the judgment, it was declared a specific lien upon the surplus money, upon the equitable ground that Spratt, the vendor, became, by virtue of the contract, the trustee of the title for his vendee, Stephenson. The decision was made in obedience to the rule that a court of equity will so control the legal lien of the judgment-creditor as to protect the rights of those who have prior equitable interests in, or liens upon, such property, or the proceeds thereof. Wilkes v. Harper, 2 Barb. Ch. 338. The lien of a judgment does not, in equity, attach upon the mere legal title to land, existing in the defendant, when the equitable title is in a third person. Ells v. Tousley, 1 Paige, 280. Such was not the provision in the judgment in favor of Lewis. Had he been awarded a specific lieu upon the surplus money, his judgment would be entitled to preference in payment out of that fund. The court decided the Spratt Case upon the peculiar provisions of the judgment, making it a specific lien upon the fund, and there was no intimation that the filing of a notice of lis pendens would have subordinated the lien of the Bowne judgment to that of Stephenson. There was no valid reason why it should. The lis pendens had performed its office. It had rendered the judgment effective against both Bowne and Stephenson. So it had here. Watson and Pittinger were bound by the judgment entered in the Lewis suit. Their rights under their mortgages are limited by the provisions in that judgment which restrained Grollner from the erection of flats upon the premises. We think the lis pendens can have no further or greater effect, and that the judgment for costs does not take precedence over the lien of the two mortgages of Watson and Spratt. Prior specific equitable liens are always entitled to a preference over a subsequent legal lien by judgment. Ex parte Howe, 1 Paige, 124; Dwight v. Newell, 3 N. Y. 187. And the allowance of the judgment to Lewis for costs, which is the general lien, in preference to the specific equitable lien, would be at variance with that principle. . We shall yield all the effect the statute requires for a notice of lis pendens, if we hold the mortgagees are bound by all the proceedings in the Lewis suit to the same effect as if they were parties thereto; that is, their mortgages are subject to the conditions contained in the final judgment in that action. Their mortgages are specific equitable liens. His judgment is a general legal lien. Our conclusion, therefore, is that the order should be reversed, with $10 costs and disbursements, to be paid from the fund, and the motion to confirm the report of the referee granted, with $20 costs, besides disbursements, to be paid from the fund also.

All concur.


text:
    Lillian Cauchois, App’lt, v. William Proctor, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June 18, 1894.)

    Pleadings—Reply.
    It is discretionary with the court to require plaintiff to reply to new matter in the answer.
    Appeal from an order requiring plaintiff to reply to certain defenses, containing new matter.

      Roger M. Sherman, for app’lt; Strong, Harmon & Mathewson (Theron G. Strong, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an order, made at the special term, requiring the plaintiff to serve a reply to the second and third defenses set up in the answer of the defendant The action is to procure an accounting in relation to a partnership between the plaintiff and the defendant. The complaint alleges a partnership agreement between the parties, by which the plaintiff becomes entitled to one-half of the profits o£ the business, and one-half of the capital. The answer admits the execution of the agreement by the parties, but alleges that nothing was done under the same. For a second defense the answer alleges that the defendant and the husband of the plaintiff entered into an agreement of copartnership for the purpose of carrying on a certain business, which is described; that the husband thereafter became insolvent, and applied to the defendant to released him from the partnership, and substitute his wife in his place, and an agreement to that effect was prepared and executed, but that no partnership was formed between the plaintiff and defendant, and nothing was done under that agreement, and the agreement was cancelled and destroyed; that thereupon an agreement was made between the defendant and the husband of the plaintiff, whereby the copartnership between them was dissolved, and the husband sold all his right and interest in the assets of the firm to the defendant, and agreed to withdraw from the firm; and that thereafter the husband ceased to have any interest in the business. For a third defense the answer alleges that the plaintiff and her husband finally settled and adjusted all their matters of difference with the defendant, and, for a valuable consideration, executed and delivered to him a release, under seal, of all claims and demands whatsoever. Thereupon, the defendant made a motion to require the plaintiff to reply to the second and third defenses separately, and the motion was granted. From that order granting the motion the plaintiff hasi appealed to this court.

The motion was made and granted under § 516 of the Code of Civil Procedure, the first clause of which is as follows: “Where an answer contains new matter constituting a defense by way of avoidance, the court may in its discretion, on the defendant’s application, direct the plaintiff to reply to the new matter” That section commits a legal discretion to the courts to direct the plaintiff to reply to new matter set up in an answer by way of avoidance, as contradistinguished from a counterclaim, and the discretian should be exercised to promote the interest of justice. In this case the defendant has set up matter in avoidance, after confessing the original agreement, and it is his right to know whether the plaintiff intends to controvert the facts so alleged. Such a course will avoid a suprise upon the trial, and narrow the issues to be tried. We think the discretion of the court was wisely exercised in' making the order, and the cases of Mercantile Nat. Bank v. Corn Exch. Bank, 73 Hun, 78; 57 St. Rep. 134, and Steinway v. Steinway, 68 Hun, 430; 52 St. Rep. 660, support our conclusion.

The order should be affirmed, with $10 costs and disbursements.


author: Mayham, P. J.

text:
    Charles E. Bullard et al., Resp’ts, v. Mary C. Harris et al., Def’ts. James H. Kenyon et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 26, 1894.)

    Appeal—Who may take.
    A judgment, which in no way injures or jeopardizes the appellants or their property, will be affirmed.
    Appeal from a judgment in favor of the plaintiffs and against the defendant Harris for costs.

      Henning & McCall (W. H. McCall, of counsel), for app’lts; Bullard & Bullard (E. F. Bullard, of counsel), for resp’ts.
   Mayham, P. J.

—On the 10th day of February, 1881, the plaintiff obtained a judgment against the defendant James H. Kenyon for $157.37. On the 23d of Feruarv, 1891, they caused an execution to be issued, and placed in the hands of the sheriff of Saratoga county, where the defendant James H. Kenyon resided. On the 6th of July, 1889, the defendant James H. Kenyon, and Ellen M. Key non, his wife, mortgaged all, or nearly all, the personal property in "their possession to the defendant Mary C. Harris, who, when the sheriff sought to seize the property so mortgaged, asserted her right to it under the mortgage, and threatened to prosecute the sheriff for selling such property, or any one who should purchase the same at the sheriff’s sale. The chattel mortgage was never recorded or filed in the town clerk’s office. To relieve this property from the cloud of the mortgage, so that ths same would sell for its true value under this execution, the plaintiff brought this action, charging that as against their judgment the mortgage was fraudulent and void, and asking to have it so adjudged, with costs against Harris, the mortgagee. As the mortgage had been foreclosed, and the mortgaged property taken by Harris, before the action was brought, it may be doubted whether the Kenyons were necessary parties to this action ; but that question does not seem to have been raised by them on the answer, or at the trial, and as the judgment in the action does not charge them with costs, it is difficult to see what interest they have in this litigation, or how they can be benefited by a reversal of this judgment, except as to the question of costs on the appeal. The trial judge found on this trial that the defendants Kenyon •were guilty of no active fraud in executing this mortgage, but that the mortgage itself was fraudulent and void, and this last proposition is not seriously contested on this appeal. We see no grounds for the reversal of this judgment; and, as the defendants have prosecuted this appeal, when the judgment, as to them, in no way injured or jeopardized them or their property, it must be affirmed.

Judgment affirmed, with costs of this appeal against the appellants.

All concur.


author: Per Curiam.

text:
    Flora A. Taylor, App’lt, v. Grand Lodge of Ancient Order of United Workmen of State of New York.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Insurance—Mutual benefit—-Waiver.
    Circumstances, under which the conditions required by laws of mutual benefit society to be performed before the certificate will issue, will not be implied to have been waived.
    Appeal from a judgment' dismissing the complaint on the merits.
    The opinion of Mr. Justice Ward at circuit is as follows:
    This is an action to recover $2,000 by the plaintiff, who was the wife of one Dwight Taylor, upon the ground that Taylor was a member of Albion Lodge No. 67 of the defendant at the time of his death, January 29, 1892. The defendant is a fraternal and benevolent association, for the mutual benefit of its members, having a beneficiary fund that is raised by assessments upon its members, and issuing certificates to such members that entitle the beneficiary named in the certificate, at the death of the member, to $2.000. Taylor became such a member, in the month of March, 1883, and received a certificate to that effect, payable on his death, to the plaintiff. He continued a member in good standing, paying all his dues, until September 11, 1889, when he was suspended, and, under the laws of the organization, forfeited the certificate and all payments thereon, for his failure to pay a couple of assessments of a dollar each, made upon him by the association to pay losses occasioned by the death of a couple of its members. The laws of the organization required that, if he was to be restored to membership, he must apply within six months after his suspension, have a new medical examination, and go through a proceeding very similar to initiation as a new member. He could then be restored (upon making certain payments) if the lodge so directed. After six months, he could only become a member of the organization by making a new application, having a new examination, pay certain fees, return his old certificate canceled, or furnish an affidavit of its loss. There were two degrees that were taken by the applicant for membership, viz. junior workman’s and the workman’s degrees. Both must be taken to complete the initiation and to create full membership, and, until both were taken, the applicant was not entitled to a certificate, or any of the rights or privileges of the order; and, in making his application, he had to stipulate, and did stipulate, that this should be so. After Taylor’s suspension, lie bad no further connection with the order, paid no dues, was not assessed, and treated his suspension as a fact and as regular and effective from September, 1889, until December 19, 1891, when he made an informal application to the lodge for reinstatement, but did not comply with the laws of the organization in so doing, but his communication was read to the lodge, and objected to as irregular. About the 2d of January, 1892, blanks were prepared for the readmission of Taylor to the organization, a medical examination had, a medical certificate made by the proper lodge officer, and a report made and signed by the investigating committee of the lodge, whose duty it was to investigate his application, and blanks filled out for Taylor to sign, applying for admission to the order and for a certificate and statement as to his physical condition. After the medical examination and the report of the investigating committee had been signed, the application was forwarded to the grand medical examiner of the defendant, and that officer returned the same to the lodge with his approval about the 8th of January, 1892. On the 11th of January, 1892, the lodge had a meeting, and then there was presented to it the report of the investigating committee and of the two medical examiners, and the unsigned application and statement of physical condition and examination.by Taylor; and acting upon that paper, and not upon the informal application that had been signed by Taylor and read to the lodge before, the lodge voted to accept the application, and admit Taylor as a member, upon his complying with the conditions of membership, which were to pay fees of a new member. The recorder of the lodge, on the next day (the 12th of January, 1892), notified Taylor of his election, and requested him to attend the meeting of the lodge, which would be the 18th of January, 1892. Taylor accordingly attended on the 18th, but did not bring his certificate canceled at all or any affidavit of its loss.. He paid $4.25, the fees required of him for complete admission into the order. He was presented with his application for admission, and with his statement of physical condition, that had not been signed, and he signed them. He was thereupon admitted as a junior workman of the order. He was then told that, in order to entitle him to the workman’s degree, he must sign an application for a beneficiary certificate, which he did. That application is most important, and provided “that the certificate issued thereon shall have no . binding force whatever until I shall have taken the workmans degree of the said order, and until countersigned by the master workman and recorder of said Albion Lodge Humber 67." This statement was made necessary and indispensab e to membership, under the laws of the order. It was also provided by the laws that the workman’s degree could not be taken at the same session of the lodge at which the junior workman’s degree was taken, except by unanimous consent. It was proposed to give Taylor the workman’s degree at that meeting, but objection was made, unanimous consent was refused, and the lodge -voted to postpone the giving of the workman’s degree to Taylor for one week, or until the next meeting. The next meeting was January 25, 1892, but Taylor was too ill to attend on that date; had contracted a sickness, with which he died on the 29th of January, 1892, never having taken the workman’s degree or received any certificate under his new application for membership. Proofs of his death were made, and the defendant had immediate notice of his death.
    The contention of the plaintiff is—First, that though the application for a restoration was irregular, that being the only application that had been signed by Taylor at the time the lodge voted to accept him, on the 11th day of January, 1892, the lodge was presumed to have acted upon that application, and to have waived all irregularities, and, he having paid all the fees and all the fees that were demanded of him subsequently, the irregularities were waived by the lodge, they having power to do so, and that Taylor was ipso facto restored as a member, and no new certificate was necessary; that, the report of the investigation committee and of the medical examiners all having been made before Taylor had in fact signed the formal and proper application and statement of physical condition, those medical certificates and examinations must be regarded as having reference to the application for restoration simply, and that, the substance of the regulations of the defendant having been complied with, no new certificate of admission was necessary, and the plaintiff was entitled to recover; or, second, that, if this were not so, then Taylor was in effect readmitted on a new application, because lie had done everything that was required of him, paid all the fees necessary, and had been substantially admitted as a member, and was-entitled to recover, notwithstanding he had not taken the workman’s degree, and had not received a certificate. Neither contention can avail. The evidence shows that the application for restoration was not entertained by the lodge, nor acted upon, and therefore nothing was waived by the lodge. It is true his application was accepted by the lodge before he had signed the necessary papers for readmission, but, before he was admitted to the junior workman’s degree, he recognized the fact that he was proceeding under his new application and for his readmission by signing the necessary papers to accomplish that purpose, and by in no manner insisting upon his informal application for restoration. He paid the fees of readmission, not of restoration, because, under the general laws of the order, if he had been restored he would have to pay the sum equal to all assessments that would have been charged against him had he remained a member for the two years that had intervened from the time of his suspension. As it was, he only paid §4.25. The contract that he had made with the order was that of a new member. He assumed the same relation as he would have assumed if he had never been a member. A waiver cannot be implied under these circumstances. The first proceeding, if it was of any avail whatever, was abandoned or superseded. The lodge, its officer, the Grand Lodge, the deceased, Taylor, by their acts, indicated this. Had there been a restoration simply, no degree whatever would have been taken or made necessary. The signing of the application for the new certificate, and the taking of the degree of junior workman, were such unequivocal acts on the part of all concerned, showing that the proceeding was that of initiating a new member, and not restoring an old one, that it leaves no room for speculation, and this contention has no foundation whatever. .It was a part of the contract between Taylor and the defendant that he should take the workman’s degree before his initiation was complete, or he could became a member. This condition was never performed, and, while that fact is due to the sickness and death of Taylor, it is nevertheless a conclusive answer to the plaintiff’s contention. The laws and regulations of this corporation are matters of substance, and they are binding upon all its members. If Taylor did not become a member, and had not received his certificate, there was no power in the order to assess its members to pay the $2,000, or any portion of the same; and, however strongly the case appealed to their charities and sympathies, the law permitted them to defend upon the grounds they have, and they have made a conclusive answer to the demands set forth in the complaint; and the plaintiff, therefore, cannot recover, but her complaint must be dismissed upon its merits.

      John H. White, for app’lt; A. C. Hardwick, for resp’t.
   Per Curiam.

—Judgment appealed from affirmed, pn the opinion of Ward, J., at the circuit.


author: Pratt, J.

text:
    Joanna Ditmas et al., as Administrators, etc., Resp’ts, v. Hector M. Hitchings et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 14, 1894.)

    Pleadings—Attorney and client—Defense.
    Bad faith, unless pleaded, is no defense to claim for services by an attorney.
    Appeal from a judgment in favor of plaintiffs.

      Frederick W. Holls, for pl’ffs ; Hector M. Hitchings, for def’ts.
   Pratt, J.

—This action is brought to recover $2,500 delivered by the plaintiff’s intestate to defendant’s testator for a purpose which failed. The defense, a counterclaim for legal services, was the only matter in dispute. The respondent’s intestate testified, in general terms, that ho never employed appellant’s testator to render any legal services ; yet, when pushed on cross-examination, he admitted that he employed the elder Mr. Hitchings to obtain a title to real estate, and also had interviews with the younger Mr. Hitchings, whom he erroneously supposed to be in partnership with his father, for the purpose of having the work hurried up. The plaintiff testified that he was at the lawyer’s office a great many times; that the matter lasted two or three years. The negotiation for the purchase resulted in a verbal agreement, by which Ditmas would receive the property on the terms he offered. Mr. Hitchings drew up two deeds,—the first having proved unsatisfactory,—the last of which would have been executed, had not Ditmas disclosed to the attorney of the grantors the sum he expected to pay. As the failure of Mr. Hitchings to get. the deed was the result of Ditmas' personal intervention, it would seem that Mr. Hitchings was entitled to be paid for his services up to that time. The court charged the j ary that his compensation depended on his good faith, and suggested that, if he did not inform Ditmas of the price for which the property could be got, it was an act of bad faith, which would destroy his right to compensation. That instruction was excepted to, and is alleged as error. An inspection of the pleadings shows that bad faith on the part of the attorney was not pleaded as a defense.

There was, therefore, no question of good faith before the jury. The instruction was error, and the exception well taken. We have examined the testimony, and do not find that it shows any ground for imputed bad faith. Mr. Hitchings was not employed to obtain the property at a low price. A witness testifies that he offered to pay $2,500 for the property if Mr. Hitcliings could get it. He testifies that he knew there would be trouble in making title to the property, because the heirs were aliens. He could not imagine a lawyer would arrange a complicated matter without compensation, and, from his evidence, it is clear that he expected both Hitchings and Baas would receive a part of the $2,500. There was, therefore, nothing in the evidence to raise the question of good or bad faith, and the jury might well have been instructed that Mr. Hitchings was entitled to receive reasonable compensation for his services in carrying on the negotiation.

There was also a claim for service in respect to a will. Ditmas testified that he consulted defendant in respect to drawing a will. He described his property, which consisted in part of real estate in six different states. The estate was testified to be “ immense,” and the rights of several minor children were to be guarded. Ditmas stated his wishes in respect to the provisions of the will, was informed that executors would be required to carry them into effect, and a future meeting was provided for. To be prepared, when that meeting should take place, to proceed to the execution of the will, would necessarily require a study of the laws of each of the states where real property was located. The estimate of $200 for such a service was moderate. In allowing nothing for that service, the verdict was erroneous.

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


author: Van Wyck, J.

text:
    Annie Duke, by Guardian, etc., App’lt, v. Tenth and Twenty-Third Street Ferry Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed June 25, 1894.)

    Negligence—Ferry landing.
    The company is not negligent in securing ferry boat at landing, where it has used the best appliances known for this purpose, and it is impossible, under certain conditions, to bring the boat and bridge together so as to leave no space between.
    Appeal from a judgment of nonsuit.

      Dailey, Bell & Crane, for app’lt; Wetmore & Jenner, for resp't.
   Van Wyck, J.

—This is an appeal from a judgment of nonsuit. The action is to recover damages for personal injuries to plaintiff, a child about four years old, through the alleged negligence of the defendant. The defendant runs a ferry from Hew York city to Brooklyn. At the close of the testimony on both sides, the defendant moved to dismiss the complaint on the following grounds, stated in these words: “We renew the motion to dismiss on the ground of the insufficiency of the proof on the part of the plaintiff to make out a case, and also upon the following grounds: In the first place, there is no evidence of any duty owing by the defendant, which it has failed or neglected to perform ; and, in the second place, there is no evidence of any negligence or want of care on the part of the defendant. There is no evidence that the appliances and the equipments used by the defendant are not the best known for the purpose for which they were used. There is no evidence that the mode of bringing the boat up to the bridge, and fastening it, was not the usual and ordinary way customarily in use for ferryboats, and the safest and best way known to those skilled in such matters, but that, on the contrary, the evidence shows that the appliances and equipments of the boats were the best known, and, that the boat was brought up in a perfectly proper and usual manner,—not only so far as this ferry is concerned, but so far as all ferries are concerned, upon the East river. The plaintiff was guilty of contributory negligence in leaving the boat; the negligence of the mother, in not looking down, and lifting the chihl over what is necessarily a dangerous spot, being imputed, of course, to the infant plaintiff.”

The motion was granted, the question for us to decide is whether this was error.

The boat used on this occasion was like those in common use around Hew York, with the passenger cabins on the sides, and a place for teams between these. The bow of the boat was curved to correspond with the curve of the bridge. The outward end of the bridge floats, and can be raised and lowered with the tide. The boat is made fast to the bridge by cables and windlasses. On this trip the boat entered the slip, and was made fast by the use of the cables and windlasses. On the side of the ladies’ cabin, where the plaintiff afid her mother were, the floor of the deck was about a foot lower than the floor of the bridge, and there was a space of about two inches between the deck and bridge; for all four of the witnesses, including the mother, who noticed the space, fix it between one and two inches. As the mother was about to step from deck to bridge, she observed that the latter was higher than the former, and was about to help the plaintiff, whose foot was caught in this space of two inches between the bow and bridge; and for the injury to the child’s foot, so received, this action is brought. The testimony of the mother and the three other witnesses who observed this space furnishes the only reliable evidence on the subject, and they fix it at about two inches wide. It seems to us it would be mere speculation to infer that the space was larger, from the size of the plaintiff’s foot—a growing child— on the day of the trial, which was ten months after the accident, or from the size of the shoe exhibited on the hearing of this appeal; for it seems to us that the foot that wore it could have easily entered such a space, if the toes went in first. The evidence is virtually uncontradicted that the appliances, including the boat, bridge, windlass, cables and slips, were the best known lor such purposes", and were in general use; that it was impossible, under certain conditions of the tide, to so bring the bow of the boat and the bridge together as to make them level, and leave no space between them; that the crowding of passengers to the front lowered the front, and the flood tide on this occasion, and always, forced the stern up the stream, leaving such a space between bow and bridge, which was unavoidable. There is nothing proven, which the defendant failed to do, upon which negligence can be predicated. Race v. Union Ferry Co., 138 N. Y. 644; 53 St. Rep. 9; Loftus v. Union Ferry Co., 84 N. Y. 455; Lafflin v. Buff. & S. W. Railroad Co., 106 id. 136; 8 St. Rep. 596; Ryan v. Man. Railway Co., 121 N. Y. 126; 30 St. Rep. 624.

Judgment must be affirmed, with costs.


author: Dwight, P. J.

text:
    James Farley, Resp’t, v. Abraham Picard, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Animals—'Vicious dog—Harboring.
    An owner of premises, who permits a vicious dog to be harbored there- , on, is not liable for injuries caused by such dog to an employe, who knew, as well as his employer, its character, but went voluntarily within its reach, where it was securely chained at the time.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes of the court.

      C. C. Davy, for app’lt; Chas. Van Voorhis, for resp’t.
   Dwight, P. J.

—The action was to recover damages for an injury from the bite of a dog. The defendant kept a sale stable in Rochester. The plaintiff and a man by the name of Harry Prescott worked for him in the stable. About a week before the plaintiff came there to work, a man brought a large mastiff dog to Harry Prescott to sell for him, and the defendant permitted Harry to keep the dog at the stable for that purpose. After the plaintiff came, he helped Harry to take care of the dog; he slept in the barn with him nights and used to chain him up after Harry went away. He must have become quite ns familiar with the character and habits of the dog as the defendant was. He knew by report, as the defendant did, that the dog had once bitten a man by the name of Thompson, and this was all either of them knew, and about all that anybody knew, against the dog’s character. The dog was kept at all times, when not let out for exercise, chained in a stall next the front door of the stable, and he was so chained, securely, in that stall when he bit the plaintiff. The plaintiff had then been at work there, and associated with the dog, day and night, for nearly three months. The partitions between the stalls were low next the barn door, and on them the men were accustomed to throw robes and blankets when they came in wet. One day in the latter part of December, the plaintiff had occasion to take a blanket from the partition next where the dog lay chained, and to do so he stepped into the next stall. Two other blankets lay on top of the one he wanted, and he says that, to get it, he reached over the partition into the stall where the dog was, and was bitten on the wrist. It is not easy to understand why he should have reached over into the other stall to get a blanket which lay across the partition, but it was only by some such means that he could have received the injury of which he complains, because the dog, being securely chained within the stall, could not come to him to bite,—he must go to the dog to be bitten. This is the whole story, as gathered from the undisputed evidence, and we think it discloses a case in which the motion for a nonsuit should have been granted, on one or more of the grounds stated, viz.: (1) That there was no evidence of negligence on the part of the defendant; (2) that the case showed-contributory negligence on the part of the plaintiff; and (3) that whatever danger there was to the plaintiff from the dog was one of the risks of the employment in which he was engaged, was as well known to himself as to the defendant, and was therefore assumed by himself. In the first place, we find no evidence whatever of negligence on-the part of the defendant in respect to the care of the dog. There was, it must be said, very little evidence against the dog’s character, and of that little still less was shown to have come to the knowledge of the defendant; but, even if he had known that the dog was a dangerous one, what more could he have done than to see to it that he was kept securely chained in a.stall? This was complete protection to everybody, unless they entered the stall by accident or in ignorance that the dog was there, or in ignorance of his character. Neither of these was the case of the plaintiff. He knew that the dog was there, and he knew quite as much,— probably much more,—of the character and disposition of the dog than the defendant did. If the defendant knew anything of the dog which required special care on his part for the safety of others, the same knowledge, possessed by the plaintiff, required special care on his part for his own safety. If, with such knowledge, he continued in the employ of the defendant, with the dog in the barn, he took the risk upon himself. If he had no knowledge which imposed a risk upon him, then neither did the defendant have knowledge which imposed a liability upon him. We think it very clear, upon the facts disclosed by this record, that the motion for a nonsuit should have been granted upon one or other or all of the grounds stated. The judgment and order appealed from should be reversed, and a new trial granted.

All concur. So ordered, with costs to abide the event.