author: Ruger, Ch. J.

text:
    The People ex rel. August Schwab, App’lt, v. Hugh J. Grant, Mayor, Resp’t.

      (Court of Appeals,

      Filed June 2, 1891.)

    Municipal corporations—New York—Auctioneer’s license.
    The mayor of New York, in the exercise of his discretion, has the right to refuse to issue an auctioneer’s license, and his action cannot he reviewed, on application for mandamus.

    Appeal from judgment of the supreme court, general term, first department, affirming order denying motion for peremptory mandamus.

      F. J. Bisckoff, for app’lt; D. J. Dean, for resp’t.

       Affirming 35 N. Y. State Rep., 596.

   Ruger, Ch. J.

This appeal is brought by the relator to procure a reversal of an order of the general term, affirming an order of the special term which refused to grant an alternative mandamus against the mayor, requiring him to approve the relator’s bond and issue to the relator a license as auctioneer in the city of Hew York, or show cause to the contrary. Ho question is made but that the bond offered by the relator was sufficient in form and substance to comply with the requirements of the law; but it is claimed that the mayor, in the exercise of his discretion, had the right to refuse to issue the license, and was justified in so doing. On the other hand, it is argued that the relator was entitled, as matter of right, to a license upon filing the bond required by the charter. The appointments of auctioneers, and the regulation of their rights, duties and compensation, has always been the subject of legislation in this state. It has, from the first, been assumed, in dealing with the subject by the public authorities, that no person had a natural right to prosecute such a business at his pleasure, and privileges to do so have always been granted by some authority subject to conditions and regulations, which excluded the great, body of the people from the prosecution of such business. The right to regulate, control and limit the number of persons employed in such business has been exercised by the legislature, as one of its acknowledged police powers, from colonial times to the present, and, I believe, has never been questioned. The persons who have been permitted to pursue the avocation of auctioneers in the state have always enjoyed especial privileges, and have been subject to special conditions and restrictions which, for the purpose of this inquiry, it is unnecessary to enumerate in detail. The question here relates to the authority which the mayor of Hew York now has, under the charter of that city, over the subject of licensing auctioneers, and upon the construction of that instrument the determination of the appeal depends.

That authority is contained in § 113 of chapter 5, of the Consolidation Act of 1882, and reads as follows: “ The mayor shall have authority to grant licenses to any person engaged in and carrying on the business and occupation of an auctioneer, or desiring to be so engaged, on such person filing a bond with two good sureties in the penal sum of $2,000. The mayor on the complaint of any person having been defrauded by any auctioneer, or the clerk, agent or assignee of such auctioneer doing business in said city, is authorized and directed to take testimony under oath in relation thereto ; and if the charge shall, in his opinion, be sustained, he shall revoke the license granted to him and direct the bonds to be forfeited.” In the same connection, the mayor is also authorized to grant licenses for various other-purposes, among which are those of using bag scales, and limiting the number thereof, scavengers of night soil, public exhibitions, keeping boarding houses for emigrant passengers, booking emigrant passengers, etc.; and to persons soliciting patronage for hotels, inns, steamboats and other transportation lines., The rights, duties, fees and privileges of auctioneers are also defined and regulated by special provisions, and particularly so in relation to their rights and duties in making sales of property under judicial orders, or statutory provisions. Sections 1983 to 1998. All sales at auction in the city of New York, not under the authority of the United States, are required to be made by licensed auctioneers. Sec. 1983 of the Consolidation Act.

There has been no time in the history of the state when it was lawful for citizens generally to pursue the occupation of auctioneers or to engage in the business of selling property at public vendue. A brief reference to some of the laws on the subject will show the course of legislation and the aspect in which auctioneers have been uniformly regarded by the law making power of the state. By chapter 4, Colonial Laws of 1774, all persons were prohibited from exposing goods for sale at public vendue auction in New York except citizens of the United States who have obtained a license so to do from the mayor or recorder of such city. This nrovision was substantially re-enacted by chapter 4 of the Laws of 1784.

By chapter 27, Laws of 1791, all persons, except those duly licensed, were prohibited from selling goods at auction, and the governor of the state, by the advice and consent of the Council of Appointment, was authorized to appoint all vendue masters or auctioneers, but not to exceed twelve in the city of New York. By chapter 62, Laws of 1792, the number authorized to be appointed in New York city was increased to twenty-four. Chapter 116, Laws of 1801, substantially re-enacts the provisions of the laws of 1791 and 1792. By the Revised Statutes auctioneers were declared to be administrative officers of the state and were required to he appointed by the governor; their number being limited to fifty-four tor the city of New York, four for the city and county of Albany, and one or more for every other village or county where they were deemed necessary by the appointing power. They were also forbidden from exercising their vocation outside of the locality for which they were appointed. Chap. 5, tit. 1, part 1, R. S.

By chapter 52 of the Laws of 1838, it was provided that .any citizen of the state might become an auctioneer and transact his business in the county in which he resided, upon filing with the comptroller a satisfactory bond, requiring, among other things, a quarterly return to the comptroller of all goods sold or struck off by him. It was also provided that whenever they were found guilty by a police court, mayor’s court, or court of criminal jurisdiction, of any fraudulent practices, they should be thereafter forever disqualified from exercising the rights or pursuing the business of auctioneers. 3 vol. Statutes at Large, 656. By reason of the numerous frauds and the disastrous consequences which followed this general license to persons who had filed the requisite bonds to carry on the business of auctioneers, and especially in the city of Hew York, it was, by chapter 138 of the Laws of 1853, enacted that “all auctioneers doing business in the city and county of Hew York shall hereafter be required, between the 1st and 15th of June in each and every year, to obtain from the mayor of said city a license to engage in and carry on such business and occupation, upon filing a bond with two good sureties in the penal sum of $2,000.” The mayor was also thereby authorized, on the complaint of any person defrauded, to take evidence on oath in relation thereto, and if, in his opinion, the charge was sustained, to revoke such license. 3 vol. Statutes at Large, 665. These provisions were substantially embodied in § 113 of the consolidation act, which constitutes the law now before us for construction.

A review of the provisions of the various acts referred to, with a view of arriving at their meaning and purpose, will, I think, when discovered, afford a solution of the question involved in this appeal. It cannot, of course, be claimed that there was any time previous to the act of 1838 when any person could exercise the duties or prosecute the business of an auctioneer but those who had been selected for that purpose by the appointing power. It is, therefore, sufficient for our purpose to commence with the laws of that year and inquire what change was made by them in the office and character of auctioneers. It will be observed that that act did not assume to repeal any special existing law, but effected that result only so far as its provisions were inconsistent with previous statutes on the subject. The provision by which any citizen of the state might, on filing a proper bond, follow the calling of an auctioneer, necessarily superseded the authority of the governor to make appointments, and abolished all limitations upon the number of persons who might engage in that business. And this was the extent of the change effected. In other respects the laws in relation to auctioneers were left unaffected, and they remained still possessed of the privileges and immunities theretofore granted to such officers, and subject to the duties, obligations and restrictions imposed by the statutes of the state, and I see no reason why they did not still continue, to a certain extent after it, administrative officers of the state. They still had the exclusive right to conduct all auction sales in the state, and were bound to make returns to the comptroller and pay to him the duties imposed on public sales, and annually to renew their bonds and perform such other duties as were enjoined upon them by statute. The practical effect of this act was, therefore, simply to change the mode by which auctioneers were designated and permit an indefinite extension of the number of such officers." This state of things continued until 1853, when the act of that session was passed. I conceive it to be of controlling importance in the determination of this appeal to discover the real meaning and effect of that act, for when that is done I think we have an infallible guide by which to determine the scope and effect of the provisions 'of the Consolidation Act.

In the prosecution of this object it is proper to look at the preamble of the act; the evils which it attempted to reach and cure,, and the circumstances under which it was passed. Its preamble recites, among other things, that “ whereas, certain evil disposed persons, especially in the city of Hew York, have for several years past by means of certain fraudulent and deceitful practices, known as mock auctions, most fraudulently obtained great sums of money from unwary persons, to their great impoverishment,”-it was therefore enacted that all auctioneers doing business in the city and county of Hew York shall hereafter be required in every year to obtain a license from the mayor of Hew York, and file a bond of $2,000; and all prior acts conflicting with these provisions were repealed. The material distinction between this act and that of 1838 was, that under it a license was to be issued, as well as a bond to be filed, and upon the wise exercise of that power the whole beneficial operation of the act necessarily depended. The number of persons to be licensed was not indicated in the act, but that subject was manifestly left to the discretion of the mayor. The plain and obvious purpose of this act was to cure the evil produced by the indiscriminate admission of citizens, of whatever character, to pursue the business of auctioneers, effected by the act of 1838, by providing a limitation upon the number of such persons and subjecting them to a preliminary scrutiny as to their character and qualifications. It is notorious that under the practical construction given to the act for nearly forty years by the authorities of the city the evils of the former system have been wholly eradicated, and the administration of the law on the subject has been entirely satisfactory. According to that construction it was held that the act imposed duties upon the mayor to be performed, as well as powers to be exercised, and, by necessary implication, authorized him to protect the community by a refusal to license persons whose character and qualifications were not satisfactory to him. If this was not effected the act would have been inoperative and powerless for any remedial purpose. If the mayor was bound to license any citizen, filing a proper bond, who applied to him for appointment, without regard to his character or reputation, the reform contemplated by the statute would not have been accomplished, and the plain purpose of the act would have been defeated. Such a construction would also involve the manifest absurdity of compelling him to re-issue licenses to persons who had been convicted by him of fraudulent practices and whose licenses had been revoked, thus, practically, nullifying one of the express provisions of the statute.

It seems to us that such a construction is wholly inadmissible. We think the law was intended to effect a reform of the abuse previously existing by restoring the former method of appointment through the selection of auctioneers and subjecting the persons applying for such appointment to the scrutiny of the highest officer of the municipality, with a view of guarding against the intrusion of incompetent and unfit men into such offices. The practice of allowing all persons who chose to do so to "perform the duties of an auctioneer had been tried and proved a failure, and the act of 1853 was an effort to reform the evils of that mode and to return to more satisfactory methods, and in this way, and this only, were the evils of the former system eradicated.

We think that § 113 of the codification act, which superseded the act of 1853, is subject to the same construction which we have applied to the act of 1853. Although some changes of phraseology were made in the effort to codify, it was not, we think, intended to effect any change in the meaning or purpose of the law, so far as the question here involved is concerned. In the one case all persons were prohibited from prosecuting the business of auctioneer in the city of Hew York who had not given a satisfactory bond and secured a license from the mayor; and by the other the mayor was given authority to grant such licenses in case the persons applying for them had filed a satisfactory bond.

There is no inconsistency in the language of the two acts, and we do not think the change in verbiage was intended to effect any change in the meaning or effect of the pre-existing statute. The later act does not, in terms or by fair implication, require the mayor to grant such licenses; but, by necessary implication, confers the power to refuse them when, in his judgment, he thinks the public interest requires it A power to grant a privilege by one is inconsistent with the possession on the part of another of an absolute right to exercise such privilege. The requirement that a person must secure leave from some one to entitle him to exercise a right, carries with it, by irresistible implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or unwise to give the required consent

A reference to the other powers conferred upon the mayor, by the same act, in respect to licensing public entertainments, hotel, steamboat and railroad solicitors, public scavengers, etc., seems to place this view beyond dispute. Ho one, we think, could reasonably claim that the exercise of the discretion of the mayor with respect to the subject of granting such licenses could be subjected to supervision or control. The powers exercised by public officers over the subjects indicated have been general throughout the state in municipal corporations, and most salutary in their operation and constitute the only protection afforded large communities from the evils of immoral and vicious exhibitions and the prosecution of employments tending to disturb the public health, peace and comfort The power conferred upon the mayor by the charter, to grant licenses, is expressed in substantially the same language in the same connection as to all of the subjects referred to, and must, we think, be governed by the same rules of construction.

A determination of this appeal which should have the effect of denying the mayor’s discretion in the exercise of the power conferred by these provisions would, we think, be most unwise and impolitic and subversive of the policy of the charter, as well as the best interests of the municipality where it is exercised.

The practice of nearly a century in this state has taught us that there is little to fear from an abuse of this power, for during that time we have yet to learn of an instance where it has been perverted for improper purposes or excited public condemnation or disapproval.

In the government of the affairs of a great municipality many powers must' necessarily be confided to the discretion of its administrative officers, and it can be productive only of mischief, in the treatment of such questions, to substitute the discretion of strangers to the power in place of that of the officers best acquainted with the necessities of the case and to whom the legislature has specially confided their exercise.

Whether any remedy is afforded by the law for an abuse of such discretion it is not now necessary to inquire, as that question cannot be presented on an application for a mandamus. To obtain relief by mandamus it is necessary that .a relator should show an invasion of a clear legal right. This he has not done in this case, and we are, therefore, of the opinion that the order of the courts below should be affirmed, with costs.

All concur, except Earl, J., not voting.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of James C. Holden, Trustee.

      (Court of Appeals,

      Filed June 2, 1891.)

    Costs—Allowances to counsel of parties appearing on accounting of TRUSTEE.
    The court has no power to make allowances for counsel fees to parties who appear in a proceeding instituted by the trustee of a trust fund for leave to resign, and to procure the appointment of a new trustee.
    Appeal from judgment of the supreme court, general term, first department, affirming order modifying referee’s report as to allowances to be paid out of trust estate and confirming report as modified.

      Sutherland Tenney, for app’lt; H. W. Vanderpoel, for guardian resp’t; Platt & Bowers, for resp’t Martha Weber.

       Reversing 35 N. Y. State Rep., 936.

   Ruger, Ch. J.

The question in this case involves the authority of the court to make allowances to parties who appear in a proceeding instituted by the trustee of a trust fund for leave to resign, and to procure the appointment of a new trustee, which necessarily involve the examination and settlement of the accounts of the retiring trustee.

In these proceedings the several beneficiaries were made parties, and. generally appeared by separate counsel, who took an active part in the conduct of the proceedings. The interests of the several beneficiaries were substantially the same, and the services of each attorney enured to the benefit of the others. The special term, in its final order, made allowances for counsel fees to several of the beneficiaries concerned in the fund, but denied them to others and to the retiring trustee; and its order was affirmed by the general term. The new trustee, who secured by the order an allowance of $500, appeals to this court from so much of it as makes allowances to the several beneficiaries for counsel fees.

This proceeding, obviously, was not an action, and must, therefore, be classified as a special proceeding, so far as the power of the court to make allowances to the parties in the litigation is concerned. That power is regulated by § 3240 of the Code of Civil Procedure, which provides that costs in a special proceeding in a court of record, and on appeal therefrom, may be awarded to any party in the discretion of the court at the rates allowed for similar services in an action brought in the same court. This section was substantially a re-enactment of the provisions of chapter 270 of the Laws of 1854, and the decisions under that act are generally applicable to cases arising under the Code of Civil Procedure. The cases in which allowances can be made in actions are defined in §§ 3252 and 3253 of that Code, and are confined to actions of partition; for the foreclosure of mortgages on real estate; to procure an adjudication upon a will, or other instrument in writing; to compel the determination of claims to real property; or when an attachment against property has been issued; and in difficult and extraordinary cases.

It is provided by § 3254 that such allowances, when authorized, shall not exceed in the aggregate to all parties the sum of $2,000. It is quite obvious that the allowances in question cannot be supported upon the theory that they are authorized by the provisions of the Code of Civil Procedure, as they are not made in any of the causes of action mentioned therein. The respondents have not, therefore, attempted to sustain the order of the court by a reference to such provisions, and the court below did not assume to grant the allowances upon any such theory. It was contended, however, that an equity court has inherent power in the due administration of a trust estate, or the distribution of a common' fund, in which many parties are interested, to make allowance upon such fund to parties engaged in a litigation in respect thereto for costs and counsel fees incurred by them in such proceedings, if beneficial to the fund, independent of the provisions of the Code. We are referred to several cases which, it is claimed, support this contention, and, among others, to those of Wetmore v. Parker, 52 N. Y., 466; Savage v. Sherman, 87 id., 277, and Downing v. Marshall, 37 id., 380.

The case of Downing v. Marshall was an action to obtain the construction of a will. The only principle established by that case, as indicated by its ' head note, is that in an equitable action for the construction of a will an extra allowance of costs cannot be made under the Code; but a trustee'may be allowed a reasonable disbursement for counsel fees. It was said by Judge Marvin in that case that “ the allowances as costs, beyond the taxable costs, cannot be sustained upon any statute, or any notion of power in the court to allow extra costs, or costs of any kind independent of statutory authority. Is there any other general principle of law upon which they, or any part of them, can be sustained in whole or in part ? I think there is. The principle to which I refer is, that persons acting autre droit, as executors, administrators, trustees, guardians, receivers, etc., are, upon a faithful execution of their trusts, to be indemnified out of the trust property for all expenses necessarily incurred in the faithful performance of their duties.”

The case of Wetmore v. Parker was also an action to obtain the construction of a will, and involved the power of the court to make an allowance to the executors of the will. It was there held that the special term of the supreme court has power to make allowances to trustees and others acting in a fiduciary capacity for all expenses necessarily incurred in the faithful performance of their duties, including counsel fees, and that the power to do this was independent of the statutory provisions relating to costs, and the cases of Downing v. Marshall, and De Courval v. Ray, 37 N. Y., 380, were cited to sustain this proposition.

We are also referred to the case of Trustees v. Greenough, 105 U. S., 527, where it was held that it was a general principle that, a trust estate must bear the expenses of its administration, and that it was also established by sufficient authority that when one of many parties having a common interest in a trust fund, at his own expense, takes proper proceedings to save it from destruction and to restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contributions from those who accept the benefit of his efforts.

It is obvious, from the mere reading of these authorities, that, the principles there laid down do not authorize the allowances made in this proceeding. The respondents do not come within the description of persons to whom allowances will be made under either of the rules approved in these cases. A reference to other-cases decided in this court seems to bear strongly against the existence of the power under which this order is claimed to have been made.

The case of Savage v. Sherman, 87 N. Y., 277, we consider an authority against the respondents, as it was there held, in an-action to obtain a construction of a will creating a trust estate, upon the appeal of one of the beneficiaries in the trust, that allowances of counsel fees from the trust fund made to the several parties, other than trustees, who appeared on an accounting in such estate and litigated the questions involved, were not authorized; Judge Rapallo saying: “We can find no ground upon which the allowances to parties other than the trustee can be sustained. We are not referred to any statute or any authority sanetioning such allowances. The trustees were entitled to be allowed their reasonable expenses for rendering and passing their accounts; but the counsel for the other parties, who attended to protect the Interests of such parties in the accounting, should look to their respective clients for their compensation, and we are not aware of any rule or principle whereby any of the parties are entitled to call upon the others to pay counsel fees which they incur on their own behalf for the protection of their personal interests.”

It was held in Rensselaer & Saratoga R. R. Co. v. Davis et al., 55 N. Y., 147, that the “ allowances of costs in special proceedings, other than the special cases embraced within § 318 of the Code, is governed by chap. 270 of the Laws of 1854. * * * That part of the order of the special term which grants an allowance to the defendants cannot, we think, be sustained. It was made upon the ground that the case was difficult and extraordinary.

“ Section 309 of the Code authorizes the court, in its discretion, to make an allowance beyond the prescribed costs, in difficult and extraordinary cases, when a defense has been interposed or a trial has been had, and in an action or proceeding for the partition of real estate.”’

The court, then, referring to the act of 1854, prescribing the costs to be allowed in special proceedings, says: “We are of the opinion that the costs referred to in that act are those to which the prevailing party in an action is, of right, entitled, and that the provision for extra allowance in § 309 applies to actions only and not to special proceedings.”

It is true that some changes in the provisions of the Code have been made and also in the phraseology of chapter 270 of the Laws of 1854 (now § 3240 of the Code of Civil Procedure), since that decision was made; but none which affects the construction to be given to the several sections of the Code in their relation to each other. The decision seems to be directly in point upon the want of authority in the court to make allowances beyond the prescribed rates in special proceedings, and the law was so understood by the court from which this appeal comes to us.

The head note in the Matter of Simpson, 26 Hun, 461, reads as follows: “ Under § 3240 of the Code of Civil Procedure, a court has no power to grant allowances in special proceedings; it can only award costs at the rates allowed for similar services in an action brought in the same court and in like manner. A proceeding instituted to procure the settlement of the accounts of a deceased trustee and the appointment of a successor, which is neither commenced or prosecuted by a summons or complaint, is a special proceeding and not an action.”

We think that case was well decided and contains a correct statement of the law applicable to the subject. If this were a preceding in which an extra allowance could properly be made to a guardian, there might be some difficulty in reversing that part of the order; but, as it is, it furnished no exception to the operation of the rule adopted as to the other respondents.

It may also be said that it does not appear that the guardian for the infant defendants rendered any important or laborious services in the matter, and whether this is so or not, his wards had a contingent and reversionary interest in the share of one of the beneficiaries only. This gave them no present interest in the trust fund, and, under the cases of Union Ins. Co. v. Van Rensselaer, 4 Paige, 87, and Downing v. Marshall, supra, an allowance to their guardian could be made only out of the shares of the infants.

We entertain no doubt of the meritorious character of the services rendered by the several attorneys for the respective beneficiaries in these proceedings, or but that they were instrumental in ' protecting the fund designed to compose the trust estate; but this was a subject in which their clients were specially interested, and which they were specially retained to protect, and there seems no reason why their services should not be compensated for by those for whose benefit they were performed.

We are, therefore, of the opinion that the court below had no ■power to make the allowances appealed from. - In view of the fact that the appellant had an allowance made to him, which should have been disallowed, as the others were, we give no costs on this appeal.

It follows that the orders of the general and special terms, so far as appealed from to this court, should be reversed, without costs to either party on this appeal.

All concur.


author: O’Brien, J.

text:
    The People ex rel. The Trustees of School District No. 25 of the Town of Hempstead, App'lts, v. The Board of Town Auditors of the Town of Hempstead et al., Resp'ts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Schools&emdash;Apportionment op school moneys.
    By chap. 591, Laws 1870, the hoard of town auditors of I-Iempstead is required to apportion a part of the income from the fund arising out of the sales of common lands among the school districts of the town on the same basis as the state moneys. After such apportionment had been made the state superintendent corrected the state apportionment, and, upon a subsequent appeal, directed the town auditors to correct their apportionment accordingly. Held, that the town auditors having complied with the statute by making an apportionment of the interest on the fund between the several school districts of the town, in the manner and according to the basis prescribed, cannot be required to change it in order to conform to a change subsequently made by the superintendent in the division and apportionment of the fund under his control.
    3. Same&emdash;Mandamus.
    The town auditors could not, of their own motion, exercise this power, and they cannot be required by mandamus to exercise any power or perform any duty except those specified in the statute.
    3. Same&emdash;Jurisdiction op superintendent.
    The power to hear and determine an appeal from the action of the town auditors is not included in the jurisdiction conferred by the legislature upon the superintendent in the statute relating to schools.
    Appeal from judgment of the supreme court, general term, second department, affirming order denying application for a peremptory mandamus to compel the board of town, auditors to comply with the instructions of the superintendent of public instruction and correct two apportionments of school moneys.

      Asa Bird Gardiner, for app’lts; Augustus N. Weller, for resp’ts.

       Affirming 35 N. Y. State Rep., 324.

   O’Brien, J.

The trustees of school district Ho. 25, of the town of Hempstead in the county of Queens, claim that the town auditors of that town, in apportioning interest moneys upon investments held by the town upon sale of certain of its lands under chap. 591 of the Laws of 1870, awarded to school district Ho. 1 the sum of $154.70 which should have been awarded to said district Ho. 25, and an adjustment of the controversy, between these two school districts, is sought by means of the writ of mandamus.

The precise relief prayed for is that the board of town auditors of the town, composed of the supervisor, justices of the peace and town clerk, be commanded, at their next meeting, in August, 1889, to correct the apportionments of interest on investments, made-under the statute above referred to, on the 21st day of December, 1885, and on the 5tli day of June, 1886, to school district Ho. 1, by withholding, at said next apportionment, the sum of $154.70' from that district and directing that it be paid to district Ho. 25. The courts below were of the opinion that there was no power in the board of town auditors to do this, although it does not appear from the order entered whether the application was denied on the ground of want of power to grant it or in the exercise of discretion, but the application has been denied. The motion for the writ was made in behalf of school district Ho. 25, and, unless it. appears that the relief sought was the enforcement of a clear legal right, the courts below properly refused it By the act of 1870, above referred to, the people of the town of Hempstead were authorized to elect a town treasurer who was to receive, invest, deposit and disburse, as in the statute particularly prescribed, all moneys arising from the sale of the plain or common lands, or from the sale or rental of any common lands, purchases or privileges belonging to the town, the principal sum to remain a permanent fund forever.

Power was given to expend the interest accruing on this fund as follows : “ Section 8. The interest accruing after deducting the expenses of the office of the said treasurer shall be disposed of as follows:

“ First, two-thirds, or so much thereof as may be deemed necessary for the common schools of said town, to bo determined by the said board of town auditors from an inspection and examination of the last annual reports of the trustees and boards of education of said town, shall be apportioned among the several school districts of said town in the same manner and upon the same basis as the public school moneys of the state are apportioned; and the said treasurer, upon receiving from the said board of town auditors a certificate of such apportionment, shall pay to the trustees and boards of education of the several school districts of said town the amount to which they are respectively entitled for the current year; second," the remaining one-third of interest, or so much thereof as may be deemed necessary by said board of town auditors, shall be paid by the said treasurer to the overseers of the poor of said town upon the certificate of said board, and appropriated and disbursed by said overseers, for the support of the poor of said town.” It will be seen that the only power conferred, or duty imposed, upon the board of town auditors is to inspect and examine the last annual report of the trustees and board of education of the town of Hempstead, and to apportion among the several school districts of the town the interest on the fund above mentioned, in the same manner and upon the same basis as the public school moneys of the state were apportioned, and to make a certificate of their action and file the same with the treasurer of the town. They have no custody or control of the fund itself, no power to direct its payment, for that duty is devolved upon the treasurer upon receipt by him of the certificate of the auditors.

It is admitted, however, in this case that the duty imposed by statute upon the town auditors was performed on the 25th day of December, 1885, and again on the 5th day of June, 1886, according to the situation then existing and in exact conformity with the statute; and the object of this proceeding is to compel the board to change and modify the apportionment thus made.

The ground of this claim is as follows: By chap. 152 of the Laws of 1885 certain portions of the village of Garden City, which prior to that date had been included within the limits of School District No. 1, was erected by the legislature into a new school district to be known as School District No. 25 of the town. The new district thus created remained unorganized until the latter part of August, 1885, a few days prior to the expiration of the school year. Up to that time this new district had no trustees, no teachers, maintained no school, and, as is claimed, did nothing as a district to entitle it to an apportionment of the public school mo«eys of the state. A branch school was maintained during the school year of 1885 within the limits of the new district, as it had been maintained for some time before, by District Ho. 1. The old district employed the teachers, controlled the organization of the school and filed the report containing the statistics required by law in 1885, just as it had before. The apportionment of public school funds by the state for the year expiring August, 1886, was made to District Ho. 1, the same as if the new district had not been formed, and the new district received nothing. But shortly after the organization of District Ho. 25 its trustees applied by petition in the nature of an appeal to the state superintendent of public instruction alleging that the new district was entitled to a portion of the public school moneys for that year which had been apportioned to the old district The appeal was heard and the superintendent decided that the apportionment had been erroneously made, and directed that the report and statistics filed be corrected and that District Ho. 1 pay over to District Ho. 25 a part of the. sum which it received in the apportionment of 1886, or in case of failure to do so before the apportionment of 1887, that the then share of District No. 1 should be correspondingly reduced and the share of District No. 25 correspondingly increased. But before these changes had been made in the apportionment of the state school moneys, as between these two districts and in the basis of apportionment,the board of town auditors, acting under the authority conferred upon them by the statute relative to the interest on the local fund derived from the common lands, had proceeded, as above stated, to apportion a part of such interest among the several school districts of the town according to the report of the district trustees, and just as the public school moneys of the state had been apportioned and distributed. The contention of the board of town auditors is that they have no power to change the apportionment of December, 1885, and June, 1886, as that was made upon the basis required by the statute, and completed by them, and being once completed they had no power or jurisdiction to act again or to change what they had done.

The trustees of district No. 25 having succeeded in the contest for the public money again appealed to the state superintendent of public instruction and insisted upon this appeal, that he had jurisdiction to compel the town auditor to change, modify and correct the apportionment completed by them in 1885 and 1886, and to pay to the new district the portion of the money derived from the interest of the fund realized from the sale of the common lands of the town. The superintendent upon this appeal determined the question in favor of the trustees of district No. 25, and ordered that the board of town auditors, at the time of the next apportionment and distribution of town moneys to schools, should withhold from any district which had been paid a larger sum than properly belonged to it, as shown by the re-apportionment previously made by him, the excess so paid, and should pay to any district which had received less than its share, as shown by such re-apportionment, the sum which it thereby appeared to be entitled to.

The board of town auditors have failed to comply with his order, and the trustees of district No. 25, by this proceeding, are attempting to compel them to comply by means of a peremptory mandamus. The writ is asked for by the relators, not for the purpose of compelling the town auditors to apportion in the year 1889 among the school districts of the town the local school fund, according to the last annual reports of the trustees and boards of education of the town, upon the same basis as the school moneys of the state have been apportioned, but to modify and change, as between two districts, an appor-' tionment made nearly four years before by making certain deductions from the share which one district was entitled to in 1889, and corresponding additions to the share of the other. This is requiring the auditors to adjust equities growing out of a change in the report of the districts, and in the statistics made by the state superintendent for the purpose of distribution of state funds subsequent to the action of the town officers, which at the time was perfectly valid.

We think that the town auditors could not, of their own motion, exercise this power, and they cannot be required by mandamus to exercise any power or perform any duty except those specified in the statute

The duty of the town auditors is statutory and ministerial. When they apportioned the moneys to the schools in the years 1885 and 1886, according to the letter and spirit of the statute, as it is admitted they did, their powers and duties respecting the moneys of the town for those years were at an end, and they cannot now be required to change and modify the apportionment then made to conform to the changes and corrections made by the .superintendent of public instruction in the apportionment of the state funds for those years.

The auditors possess no power and have no duties to perform with respect to the payment of the moneys of the town. That duty devolves upon the town treasurer, and it seems to us that there is quite as much ground for the relators to claim that a mandamus will lie against the town treasurer upon receiving the certificate of the auditors, apportioning the funds among the various school districts, to require him to then deduct $154.70 from the share apportioned to district No. 1 and pay it over to district No. 25.

The argument in behalf of the relators is grounded mainly, if not entirely, upon the proposition that the decision of the superintendent of public instruction, requiring the town auditors to change and correct the apportionment of the local fund made by them as above stated, is final and conclusive as an adjudication in regard to their legal duty. In order to give such effect to the decision the superintendent, like all other officers proceeding judicially, must have obtained jurisdiction of the parties and of the subject matter. The power to hear and determine an appeal from the action of the town auditors is not, we think, included in the' jurisdiction conferred by the legislature upon the superintendent in the statute relating to schools. Laws 1864, chap. 555.

It is urged that the power is covered by the provisions contained in the second article of the chapter, which authorizes the superintendent to supervise all trusts for the benefit of schools. The provisions of the act of 1870, relating to the town of Hemp-stead, do not create a trust for school purposes within the meaning of this article. The town owned certain lands in its own right which were sold and converted into money. The legislature authorized the town, through its own officers, to invest this fund, and to apply the interest thereon partly to the support of the schools of the town and partly to the support of the poor. The care and management of the fund and the disposition of the accruing annual interest devolves, under the statute, not to trustees of a trust, but upon public officers chosen by the electors of the town. The court, no doubt, may compel these officers by mandamus to perform every duty that the statute enjoins upon them. They have complied with the statute by making an apportionment of the interest on the fund between the several school districts of the town in the manner and according to the basis prescribed, and they cannot now be required to change it in order to conform, to a change subsequently made by the superintendent in the division and apportionment of the fund under his control This power has not been given to the auditors by the statute, and it cannot be conferred by the court

The order of the general term should be affirmed, with costs.

All concur. __


text:
    Augustin Daly, v. Gustav Amberg, Def't

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Injunction—Cannot be disregarded, though irregular.
    The disobedience of an injunction order cannot be justified by showing that it was improvidently or erroneously granted or irregularly served. Until the order is vacated or the service set aside it must be obeyed, unless it can be shown that it is absolutely void.
    2. Same—Service on agents, etc.
    An injunction was granted forbidding the proprietor of a theatre, his agents, etc., from producing a certain play. He left the state, and the injunction was served upon the acting manager, ticket agent and leading actor. Held,, that the fact that the summons had not been served on the proprietor did not justify them in disobeying the injunction. Such wilful disobedience is a contempt of the authority of the court.
    Appeal from a judgment of the supreme court, general term, first department, modifying and affirming an order directing the punishment of defendants for disobeying an injunction order.

      S. W. Rosendale, for app’lt; Stephen H. Olin, for resp’t.

       Affirming 36 N. Y. State Rep., 713.

   O’Brien, J.

The supreme court made an order in this action adjudging that Schoenberg, Winterfeld and Whither were guilty of contempt, in disobeying an injunction granted in the action by a judge of the court. The general term has affirmed the order, and upon appeal to this court we are asked to reverse it for various reasons, but one of which it is necessary to consider. It has been found by the courts below that the appellant did disobey the order, and that such disobedience defeated, impaired, impeded and prejudiced the rights and remedies of the plaintiff. The proof" upon all the questions of fact involved in the proceeding was sufficient to call for the exercise of the judgment and discretion of the courts below, and there being legal evidence to support the findings, they are conclusive upon us, so far as concerns the facts passed upon. Bu,t the appellants were not parties to the action, and at the time that they committed the acts which constitute the alleged contempt, neither the summons nor the injunction order had been served upon the defendant, in whose employment they were, and it is now argued that under such circumstances, the court below had no power to make the order appealed from. On the 15th day of October, 1890, the plaintiff presented to a justice of the supreme court the summons and complaint in this action, duly verified, also an affidavit and undertaking, as required by the Code to authorize the granting of an injunction. It appeared by the complaint that the plaintiff was a theatrical manager, and had acquired by purchase from the dramatic author the sole right to produce in this country the unpublished manu-“ script play,in the German language, called “Die Wiede Jager.”

It further appeared that the defendant was also a theatrical manager and that he had announced his intention to produce this play at his theatre in Irving Place, in the city of Hew York, on the evening of the 17th and 18th of October. The prayer of the complaint was that a perpetual injunction might issue, restraining the defendant, his agents, actors, servants and employes from producing this play. The justice to whom these papers were presented immediately made an order directing the defendant to show cause on October 20th why an injunction should not issue in accordance with the prayer of the complaint enjoining the defendant, his actors, agents and servants in the meantime and that service of the order on or before October 17th should be sufficient. Before service of the papers in the suit could be made upon the defendant he left the city of Hew York, his residence and place of business, and was absent from the state four daj'S, and the injunction and other papers and process in the case were not served upon him until October 20th. In the meantime, and while the defendant was thus absent, his servants, actors and employes, on October 17th and 18th, produced the play at his theatre. Schoenberg was in apparent control of the theatre and acted as manager in the absence of Amberg the defendant, Winterfield was in charge of the box office and appeared to exercise some authority over the actors, and, according to his own statement, he was treasurer of the theatre. Walther acted a leading part in the play. On or prior to October 17, 1890, and in time to prevent the production of the play, the temporary injunction was served upon these three persons by showing each the original, with the signature of the justice, aad leaving with him a copy of the order, with a notice signed by plaintiff’s attorney, stating that the order had been granted. As to Winterfield and Schoenberg, copies of all the papers, upon which the order was granted, were also served. It is well settled that disobedience of an injunction order cannot be justified by showing that it was improvidently or erroneously granted or irregularly served. Until the order is vacated or the service set aside it must be obeyed unless it can be shown that it is absolutely void. People v. Sturtevant, 9 N. Y., 263; Peoples. Bergen, 53 id., 404; Clark v. Bininger, 75 id., 344; The Erie Railway Co. v. Ramsey, 45 id., 637.

It is contended, in support of this appeal, that the order to show cause has no vitality or force whatever until, at least, the summons in the action had been served upon the defendant If this position be correct it is obvious that a convenient method has been devised for evading and defeating the remedy which the Code secures to parties by means of an injunction. All that is necessary is for the defendant to absent himself from the state before service of process upon him, and then, when secure under the protection of another jurisdiction, he may direct or permit his agents, servants or employes to do the acts forbidden by the order, without fear of punishment The principal authority that has been found to support the view of the appellant is Leffingwell v. Chave, 5 Bosw., 703, decided by Judge Woodruff at special term. That was a motion to vacate an injunction because granted by the judge before the summons in the action was served. Section 220 of the Code of Procedure, under which the case arose, provided that “ the injunction may be granted at the time of commencing the action or at any time afterwards before judgment.” It was held that an injunction granted before the summons was served was regular and could not be set aside on motion. Whether, under any circumstances, the injunction could become operative if served before the summons, was a question not necessarily involved in the case, though the learned judge expressed the opinion that it could not. The present Code of Civil Procedure, § 608, provides that the injunction order “may be granted to accompany the summons, or at any time after the commencement of the action and before final judgment.” It may be admitted that an injunction served prior to the service of the summons in an action is irregular, but it by no means follows that it is void. It cannot be said that an order is void when there was jurisdiction in the court or officer to make it The presentation of the summons, complaint, affidavit and undertaking to the judge conferred upon him, under the statute, jurisdiction to make the order, and it was valid from the moment when he signed and delivered it. In some cases the court acquires jurisdiction of an action before the summons is served. By § 416 of the Code of Civil Procedure jurisdiction of the action is obtained, for the purpose of controlling all subsequent proceedings, from the time of granting a provisional remedy.

It follows that in this case the court had the power to grant the injunction, and had jurisdiction of the action in which it was granted, from that time, for the purpose of enforcing obedience to its order. In this condition of things to say that these appellants could disregard the injunction when actually served upon them, and continue to do the things enjoined and forbidden, because the plaintiff had not yet succeeded in making personal service of the summons upon the defendant, would be to defeat the remedy intended to be secured by the order, and to trifle with the administration of justice. The appellants were the agents and servants of the defendant. The restraining words of the order included them as well as their employer. By the service of it upon them they were informed that a suit had been commenced to perpetually restrain the production of the play, and that the court had enjoined the production thereof in the meantime and during the pendency of the action. The wilful disobedience of the order of the court served under such circumstances, is a contempt of its authority, and this result is not relieved by the circumstance that the summons in the action had not yet been served upon the defendant when the order was disobeyed. This court has upheld proceedings in the supreme court punishing parties for contempt in violating an injunction who had knowledge of it, though not served, and also the agents and attorneys of parties having like knowledge of the granting of the order, though it was imperfectly 07- irregularly served. Abell v. The N. Y., L. & W. R. R. Co., 18 Wk. Dig., 554; affirmed, 100 N. Y., 634; Koehler v. The Farmers & Drovers’ Bank, 6 N. Y. Supp., 470 ; 25 N. Y. State Rep., 222 affirmed, 117 N. Y., 661; 27 N. Y. State Rep., 982. The same result must follow in a case where the agents and servants have been actually served with the order, though the plaintiff had not been able to serve the summons or any other paper upon the defendant himself.

The order appealed from should be affirmed, with costs.

All concur.


text:
    Charles T. Redfield, Adm’r, Resp’t, v. Lewis H. Redfield et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    Will—Annuity—Charge on realty.
    By testator’s will he devised certain real estate to his daughters M. and J. and his son L., subject to the payment of an annuity to his wife, from whom he had separated, which was charged on the real estate if she should execute a release of dower and interest in the estate. By a codicil he altered this provision hy striking out the names of J. and L. and giving the premises to M. alone, subject to the same provisions, and the payment of an annuity to L. By another codicil he again amended it hy giving the premises to M. and L. and releasing M. from the payment to L. JJeld, that the provision of the original will as to the annuity to the wife remained unchanged, and it remained a charge upon the land as well as upon M. personally.
    Appeal from judgment of the supreme court, general term,, fourth -department, affirming judgment entered at special term, adjudging that an annuity given by the will of Lewis H. Redñeld, Sr., to his wife in lieu of dower was a charge upon a store and lot-devised by the testator to Lewis H. Redñeld and Margaret T. Smith.

      Louis Marshall, for app’lts; Wm. G. Tracy and W. S. Andrews, for resp’t.

       Affirming 36 N. Y. State Rep., 787.

   O’Brien, J.

The will of Lewis H. Redfield, admitted to probate in the year 1882, devised to his two daughters, Margaret T_ Smith and Jane L. Redfield, and his son, Lewis EL Redñeld, Jr.,, a block or store in Syracuse, “ to have and to hold the same as joint tenants, and if either shall die, then the interest of the one-so dying will go to the survivor or survivors, and the said premises and said legatees, or their survivor or survivors, are hereby charged with and this legacy and bequest is made subject to the payment to my wife, Mrs. Anna Maria Redñeld, of $150 quarter-yearly from my death during her natural life, if she shall "execute, acknowledge and deliver to my executors a proper release of her right of dower and interest in my real estate, and this provision for her is hereby declared to be in full discharge of such right of dower and also in discharge of my agreement to pay her $400 annually, and of all undertakings and, obligations on my part for her benefit or support, and of all her interest in my property or estate.” Many years prior to the-date of this will, May 16, 1874, the testator and his wife, referred to in this provision, had separated. By a codicil, dated April 25,. 1877, the above provision of the will was changed by the use of these words: “ Strike out and I revoke from the second and third lines in article third in said will these words: and Jane L. Red-field and to my son Lewis Hamilton, Jr.,’ so that the legacy and bequest in said article will be to my said daughter Margaret and not to her and to said Jane L. and Lewis Hamilton, and yet subject to the same provisions and conditions as in said article contained to be left and performed by said Margaret alone, instead of my three children as in said article contained. And my daughter Margaret is further required to, and she will assume and pay to or for the benefit of my son Lewis H. Redfield, the sum of seventy-five dollars, quarter annually from the proof of my will, and for the term of twelve years, or only till his death if he shall die within that time”

By another codicil, dated July 14, 1881, a further change was made as follows: “I further alter article third of my said will and article third of ray codicil of 25th April, 1877, by and I hereby will and devise to said Margaret T. Smith and Lewis H. Redfield, equally, and as tenants in common, the store and lot therein described * * * and the said Margaret is released from paying to said Lewis H. and his heirs the payments therein provided.” After the death of the testator in 1882, Mrs. Smith and Lewis H. Redfield, the two children named in the last codicil, went into possession of the premises as tenants in common, but never paid anything to the widow in fulfillment of the condition providing for an annuity or otherwise. She died in 1888, and her administrator presented a claim for the annuity, which was ignored. To enforce that claim this action was brought, resulting in a judgment for the plaintiff, decreeing that the annuity to Mrs. Redfield, specified in the original will, was a charge upon the real estate and that there was due thereon §3,884, with interest thereon from October 4, 1890, and a sale of the premises was ordered for the satisfaction of this claim, and Mrs. Smith was adjudged liable to pay any deficiency arising upon such sale.

It appeared that in the year 1883, and after the will had been admitted to probate, that the widow executed and delivered in compliance with the will to the executors of her husband a release of her dower and of all interest in the real estate of which her husband died seized, as performance on her part of the conditions on which the annuity mentioned in the will was payable to her. The question is one of construction, involving the intention of the testator as to the obligation of the persons who took the store under his will, and the liability of the land itself for the payment of the annuity to the widow.

Mrs. Smith, whose interest in the real estate is bound by the judgment and who has been adjudged liable to pay any deficiency, has not appealed, but her brother Lewis H. and parties claiming under his title have. In their behalf it is urged, with much ingenuity, that as the testator, in framing the codicil last quoted, omitted all reference to the conditions upon which the store was devised in the original will, and in the earlier codicil, he must be deemed to have devised it absolutely, free and clear from the charge of the annuity to his wife, or then, there being no liability in terms imposed by the last codicil upon Lewis H. Red-field, Mrs. Smith and her interest alone are charged. It is clear that the testator, by the third clause of his will, intended to devise the land to his three children jointly subject to the payment of the annuity. He also used words appropriate to charge the devisees personally, but they would be so bound without them upon acceptance of the gift. Brown v. Knapp, 79 N. Y., 186 ; Gridley v. Gridley, 24 id., 130; Bushnell v. Carpenter, 28 Hun, 19 ; aff’d, 92 N. Y., 270; Larkin v. Mann, 53 Barb., 267.

The same intention is carefully preserved and clearly expressed in the codicil of April 25, 1877. The daughter, Jane L., and the son, Lewis H., are dropped out as devisees of this specific real estate, and the daughter Margaret made the sole devisee, subject to the annuity which is retained and subject to an additional charge of $300 per year in favor of Lewis H. from the time of proof of the will and during twelve years, or for life, in case he died before the expiration of that period.

If it was the intention of the testator, when executing the codicil of July 14, 1881, to devise the store to two of his children free from the lien and encumbrance of the annuity, there could be no reason for retaining the codicil of April 25,1877. The final intent which the argument for the appellants attributes to the testator would render that codicil utterly useless and meaningless, and yet the language used indicates his intention to modify, but not to revoke it entirely. He says: “I further alter article third in my said will and article first in my codicil of 25th April, 1877,” etc., thus manifesting the intention, as it seems to us, to retain both of the provisions referred to for certain purposes. He was still separated from his wife. Ho new provision was made for her and it is scarcely reasonable to suppose, under all the circumstances, that the provision in the will and earlier codicil, which was to furnish the consideration for a release of her dower and was to be a substitute for his obligation to pay her $400 per year, was entirely abandoned. Such a radical change in the scheme of the testator would naturally be expressed in clear terms. He used no language, however, indicating an intent to change the provision for an annuity or to substitute anything else in its place, and it is a general rule that a codicil will not operate as a revocation of previous testamentary provisions beyond the clear import of its language. Wetmore v. Parker, 52 N. Y., 462; 1 Redf. on Wills, 362 and note; 1 Jarman on Wills, 160, note 2; Willson v. Willson, 8 Cow., 56.

Margaret was released from the payment of $300 per year to her brother, and it is reasonable to conclude that if the testator intended to release her, or the land devised to her, from any other burdens imposed by previous provisions, such intention would have been as clearly expressed. This is in accordance with the rule that an expressed intention to make a change in a will in one particular, negatives, by implication, an intention to alter it in any other respect. Wetmore v. Parker, supra; Quincy v. Rogers, 9 Cush., 291.

When the son, Lewis H., accepted the devise to him and Margaret jointly he became, as we have seen, personally liable for a share of the burden, and his interest in the land also became charged. As the value of the property is much more than the charge in favor of the plaintiff, and as Mrs. Smith does not complain in regard to the provision in the judgment for payment by her of any deficiency after the sale, it is plain that the judgment is as favorable to the son as the facts will warrant. We perceive no good reason for holding that his share of the land is relieved from the annuity in ease the testator intended to retain it all, and on that point the better construction of the language of the testator is that the land is devised under the last codicil to the two children named, subject to the annuity, as it was to the three, in the third clause of the will.

The judgment should be affirmed, with costs.

All concur, except Ruger, Oh. J., and Andrews, J., not voting, and Cray, J., absent.


author: Earl, J.

text:
    T. Scott Thacher, Ex’r, Resp’t, v. The Hope Cemetery Association, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Limitation—Trust.
    In March, 1868, the plaintiff’s testator and others loaned moneys to defendant, for which it issued a certificate agreeing to repay the loans in semiannual dividends from moneys received from sales of lots, which it realized upon more than ten years prior to the bringing of this action, but of which plaintiff’s testator had no knowledge up to within six years. Held, that there was no trust created in defendants, and the statute of limitations had run against the claim upon the contract obligations of the defendant.
    2. Same.
    That even if an equitable action was necessary, the amount accrued as to the whole amount due upon the certificates when sufficient money had been received from the sale of lots to pay the whole, according to the terms of the certificate, and that was more than ten years prior to the commencement of the action.
    Appeal from a judgment of the supreme court, general term, fifth department, affirming a judgment for plaintiff on decision of court on former appeal, reported in 12 K Y. State Rep., 857.

      James H. Stevens, for app’lt; A. S. Kendall, for resp’t.

       Reversing 80 N. Y. State Rep., 1021; see 12 id., 857.

   Earl, J.

Otis Thacher died on the 14th day of March, 1868, leaving a will, appointing the plaintiff executor thereof. The will was admitted to probate on the 6th day of May thereafter, and letters testamentary thereon were then issued to the plaintiff. Many years afterward, on the 5th day of October, 1883, he brought this action to .enforce the payment of the money mentioned in a certificate issued by the defendant, of which the following is a copy:

“Hops Cemetery Association.
No. 25.
“We certify that Otis Thacher has this day loaned to the Hope Cemetery Association Three Hundred Dollars. It is agreed upon the part of the said Association that one-half of the ! receipts from the sale of lots shall be applied exclusively to the payment of the sum of Twenty-Five Hundred Dollars loaned to the Association by divers persons, of which the said sum 'of $300 forms a part, and for the payment of the interest thereon, said interest to be payable annually, and the receipts to be so applied shall be distributed on the 1st day of July and the 1st day of January in each year until said sum shall be fully paid.
“August 1, 1864.
“A. L. Smith, President.
“M. Adsit, Treasurer.”

Early in August, 1864, by this certificate and other certificates issued to other persons, the defendant borrowed about the sum of $2,200, and out of the money so borrowed it paid for land purchased of Otis Thacher the sum of $1,527.75, and the balance of the money it used for improving its cemetery, and for its other general purposes. The land so purchased was divided into cemetery lots to be sold, and it was the one-half of the receipt of the sales of such lots which were to be applied on the certificates.

The court, at special term, found that the proceeds “ of sales of lands conveyed by the defendant in lots, sufficient to pay the certificate in question, and applicable to the payment thereof, were received by the defendant more than ten years prior to the commencement of this action. ” Upon that finding the defendant claims that the plaintiff’s cause of action upon the certificate was, at the time" of the commencement of this action, barred by the statute of limitations. The court further found “ that the plaintiff did not, nor did his testator, have actual knowledge for more than ten years before the commencement of this action of the facts in regard to the receipt of money from the sale of lots by the defendant out of which receipts the plaintiff’s right of action here depends; nor did either of them have such knowledge more than six years before the commencement of this action; ” and upon that.finding it based its conclusion that the cause of action was not barred by the statute.

From the opinion of the court below, and from the argument of the counsel for the plaintiff, it appears that the court reached the conclusion that the cause of action was not barred by the statute because it held that by the terms of the certificate the defendant became a trustee of the moneys received from the sale of lots for the benefit of the plaintiff and other holders of certificates, and that therefore the cause of action did not accrue until the plaintiff demanded, “ or ought to have demanded, an accounting and application of his distributive share, or the defendant in some way denied the plaintiff’s right, so that its holding of the money became adverse.”

It appears to be conceded that this recovery cannot be upheld against the defense of the statute of limitations, except by holding that the defendant, in some way, became the trustee of the plaintiff and other holders of certificates, and that the statute could not be set running until, in some way, it repudiated, or refused upon demand, to perform the trust.

If we consider this certificate without reference to the statute governing the defendant, we think it impossible to read it as creating a trust of any kind. It is not entirely clear that it does not create a general obligation against the defendant to pay the $300 borrowed. But we will assume that it did not, and that the only obligation of the defendant was to pay the $300 and interest at the times mentioned out of moneys received from the sale of lots. The real estate belonged absolutely to it, and the moneys received from the sale of lots also belonged to it. They did not in any sense, legally or equitably, become the moneys of the holders of the certificates. If after the moneys were received they had been absolutely lost without the fault of the defendant, the loss would have fallen upon it, and not upon the holders of the certificates. It cannot well be claimed that if the defendant had been an individual and had received this money and refused to apply it, he would have been liable to arrest under § 549 of the Code of Civil Procedure, on the ground that he had received the money in a fiduciary capacity, and had embezzled or misapplied it. Nor would he have been guilty of grand larceny under § 541 of the Penal Code, for receiving money as a trustee and withholding, or misappropriating the same. The sole obligation assumed by the defendant by the execution of the certificates was to apply the moneys -received from the sales of lots as therein specified, and when it failed to so apply them it became liable to an action for a breach of its contract obligations. It was obliged to apply the money so received semi-annually, and the instrument must be treated as to its legal effect, as if it had been payable in semi-annual installments; and for default in the payment of any installment an action could at once have been brought to recover the amount due for such installments, and when all the installments became due, as they did more than ten years before the commencement of this action, then the entire amount specified in the certificate was due, and an action could then have been brought against the defendant to recover the whole amount thereof, and an ordinary action at law is the proper remedy in such a case. Mills v. Mills, 115 N. Y., 80; 23 N. Y. State Rep., 604.

But even if from facts peculiar to the case, an equitable action could have been commenced then, as against the statute of limitations it was necessary to commence it within ten years from the time the cause of action accrued.

If this had been an agreement to take the plaintiff’s money and hold and apply it as expressed in the certificate, or the money of some other person, the relation of a trustee might have been created. But here the agreement was to apply the defendant’s own money to the payment of its own debt, and we know of no principle of law which will allow us to hold that in such a case a trust has been created. One may agree to set apart and hold one-half of his income and pay it to his creditor. Or he may agree to set apart and hold and pay one-half of the proceeds of the sale of specified real or personal property to the payment of his debts, and yet in such cases he would only create a general personal obligation to perform his agreement, and for a breach of it a recovery could be had as for a breach of any other contract; and even if an equitable action could in some way be commenced to reach the money in the hands of the promisor it would be needful to prove that the money was in his hands and that the action had been commenced within ten years after a right to bring it had accrued.

We have thus far considered this certificate without reference to the statutes governing the defendant It was organized under the act, chap. 133 of the Laws of 1847, and acts amendatory thereof. Chapter 280, Laws of 1852 ; chap. 122, Laws of 1853 ; chap. 163, Laws of 1860. It is claimed on behalf of the defendant that this certificate was not issued in pursuance of or in conformity with those acts, and hence that it is in no way governed by them. Without particularly referring to their provisions, we will assume, as contended by the plaintiff, that, with the exception that the certificate was unsealed, it was issued in accordance with those acts, and that therefore it is one of the certificates provided for in the acts. Section 4 of the act of 1860 provides as follows:

“ Nothing in this act contained shall be construed to create a lien upon lots or plats belonging to individual 'proprietors within the cemetery limits, nor any other or greater liability against the association or trustees issuing said certificates than may be necessary to enforce the faithful application of the proceeds of sales in the redemption thereof in the manner aforesaid.’’

The effect of this section is that by issuing these certificate's, to be paid out of moneys received from the sale of lots, no lien was created upon cemetery lots owned by individuals, and that no other or greater liability was incurred by the defendant or its trustees in issuing the certificates than was necessary “to enforce the faithful application of the proceeds of sales in the redemption ’’ of the certificates. To understand the force of this section it is necessary to ascertain the obligation assumed by the defendant by the terms of the certificate under the statute. That was not a general obligation to pay the certificate, but to pay it only out of the proceeds of moneys received from the sale of lots. If it never received any money from the sale of lots it could not be compelled to pay any upon the certificates. If it did not receive money enough from that source to pay all the certificates it could be required only to apply such money as it received. If it received money enough to pay them all, then it was required to apply it in paying all. And for a failure to so apply it, by what form of action could payment be enforced ? It would be sufficient to commence an action, as we have above stated, for a breach of its obligation, and thus a recovery from it could be had for the money which it ought to have applied. It cannot be said that an action in equity was absolutely necessary. There might-be circumstances and complications which would render such an action necessary, but ordinarily an action at law would be sufficient in which the holder of a certificate could recover by showing that the defendant had received money which it ought to, but had not, applied. But even if an equitable action was necessary against the defendant, the right to that action certainly accrued as to the whole amount due upon the certificates when sufficient money had been received from the sale of lots to pay the whole, according to the terms of the certificates, and that was more than ten years before the commencement of this action.

Therefore, taking any view of this case justified by the law and the facts, whether the remedy of the plaintiff be legal or equitable, his cause of action was barred and his complaint should have been dismissed.

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

All concur.


text:
    Charles E. Whittaker, Adm’r, Resp’t, v. The Prest., etc., of the Delaware & Hudson Canal Co., App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Master and servant—Notice op incompetency op co-servant.
    It is not necessary that the incompetency of a servant be brought to the personal knowledge of the master; but if it continues for such a length of time as that a careful and diligent supervision of its business ought to bring it to its knowledge it is chargeable with notice of its existence.
    2. Same—Negligence—Railroad—Co-servant.
    Plaintiff's intesta'e was injured through a collision between an incoming freight train upon which he was employed as fireman and an engine left standing upon the main track of defendant’s road, in violation of the rules of the company, by its engineer while he was waiting in the ofidce near by for orders. This engineer and others had been in the habit of doing this for at least a year. Held, that this had continued for so long that it ustified the jury in finding that it had come to the knowledge o"f the defendant and was pursued by their acquiesence, and as there was evidence that intestate was free from contributory negligence, it was error for the court to refuse to submit the case to the jury.
    Appeal from order of the supreme court, general term, fourth department, reversing judgment, dismissing complaint and directing new trial.

      Edwin Young, for app’lt; Louis Marshall, for resp’t.

       Affirming 34 N. Y. State Rep., 822.

   Ruger, Ch. J.

The appeal in this case was taken by the defendant, upon the usual stipulation, from an order of the general term, reversing a judgment dismissing the complaint, and directing a new trial. The complaint was dismissed by the trial court upon the ground that the evidence failed to show negligence on the defendant’s part, and also that the plaintiff did not show that his intestate was free from, contributory negligence. Upon appeal to the general term, they held that there was evidence sufficient to support a verdict for the plaintiff on both grounds, and that the direction of a verdict by the trial court was, therefore, erroneous. We agree with the conclusion reached by the general term. There was evidence in the case, from which the jury could properly have found that the injuries received by plaintiff’s intestate were occasioned by the negligence of the defendant. The proof showed that the accident occurred in the night time in the defendant’s railroad yard at Quaker street, through a collision between an incoming freight train, upon which the plaintiff’s intestate was employed as fireman, and an engine left standing on the main track of defendant’s road, in violation of the rules of the company, by its engineer while he was waiting in the office near by for orders.

It is claimed by the defendant that the presence of the stationary engine on the track was due to the fault of its engineer, who placed it there in contravention of a rule of the company forbidding its employes from placing engines and cars on the main track, except under orders. It is conceded that this engineer had no orders to go upon the main track with his engine, and it is, therefore, claimed that the accident having occurred through the fault of a co-servant, the company is not liable.

There was evidence in the case to show that this engineer and others for a period of at least one year had been in the habit of disobeying this rule of the company, and violating its requirements by placing their engines upon the main track at Quaker street and leaving them there while awaiting orders. This practice had been so frequently indulged in and had continued for such a length of time, that the jury were justified in finding that it had come to the knowledge of the railroad company and was pursued by their acquiescence, or as the result of a want of vigilance in supervising the management of their road.

A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants; but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules. Wabash R. R. Co. v. McDaniels, 107 U. S., 454 ; Chapham v. Erie R. Co., 55 N. Y., 579 ; Baulec v. N. Y. & H. R. R. Co., 59 id., 356.

Neither is its duty in respect to the employment of servants satisfied by the hiring of capable and competent persons in the first instance; but it is also required that they should exercise such an oversight and supervision of such servants, that if they afterwards become habitually, notoriously incompetent, or unfit, from carelessnees or bad habits, to perform their duties, this incompetency, if long continued, should be discovered and guarded against. Laning v. N. Y. C. R. R. Co., 49 N. Y., 521. It is not necessary that this incompetency should be brought to the personal knowledge of the master; but if it continues for such a length of time as that a careful and diligent supervision of its business ought to bring it to its knowledge, it is chargeable with notice of its existence.

It was said in Gilman v. Eastern R. R Cor., 10 Allen, 283, approved in the Laning case, that “ this care he (the master) can and must exercise both in procuring and keeping and maintaining such servants, structures and engines; if he knows, or, in the exercise of due care, might have known that his servants are incompetent, or his structures or engines insufficient at the time of procuring them, or at any subsequent time, he fails in his duty. For the management of his machinery and the conduct of his servants, he is not responsible to their fellow servants; but he cannot avail himself of this exemption from responsibility when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes injury to those in his employ.” The rule in reference to constructive notice is well expressed in the case of Hills v. Chicago & Grand Trunk R. Co., 55 Mich., 487, as follows: “A master who retains an incompetent servant in his employment, after knowledge comes to him of the unfitness of the servant for the service in which he is engaged, or of whose unfitness he might have known by the exercise of due diligence or ordinary care, is liable for injury to .another servant, cause’d by the negligent acts of the incompetent servant."

In views of these rules, it was clearly error to take this case from the jury, unless there was also evidence from which the jury were, as matter of law, authorized to find contributory negligence on the part of the plaintiff’s intestate. So far from this being the case, we are of .the opinion that the undisputed proof showed that he was free from negligence. The material evidence on this question was given by the engineer in charge of the freight train, and he testifies that he received orders at Cobleskül, the last station before reaching Quaker .Street, to run into the yard at that place in advance of his schedule time; that he was accordingly a few minutes .ahead of time with his train, and was running at the time he entered the yard at the rate of from seven to ten miles an hour; that the night was dark and foggy, and it was impossible to see a dark stationary object on the track in time to avoid a collision with it; that he gave the usual signal about half a mile from the yard, lay a sharp whistle, of the approach of his train and rang his bell continuously; that he kept a sharp lookout for objects on the track ahead of him as he ran into the yard, and saw nothing; that the stationary engine had no light upon it that could be seen, and he did not see it until he arrived within sixty or seventy feet of the engine, when it was discovered by the reflection of his own headlight upon it He further testified that the last he saw of Whittaker he was getting coal from the tank to throw into the furnace. This was immediately after he saw the engine, and there was then not sufficient time to enable either Whittaker or himself to escape from the train. It is quite difficult to see what measures either the engineer or Whittaker could have taken to avoid the collision. They were under orders to run into the yard in advance of time, and had a right to assume that the defendant had taken such precautions as would relieve them from any hazard of a collision in running into the Quaker Street yard. They were "both engaged in the discharge of their customary duties and exercised all of the precaution in entering the yard that was required "by the obligations of ordinary prudence and care, and are not justly chargeable with negligence in running into the yard as they did. The only suggestion of any want of care on their part is predicated upon the assumption that the-train was running at a prohibited rate of speed.

It is claimed that there is proof in the case that trains are prohibited from running through a yard at a greater rate of speed than four miles an hour. No such rule was introduced in evidence ; but there was a rule proved that “ all engines must approach and pass all stations cautiously, whether they are to stop or not” One of the railroad employes did, however, testify that he had previously sworn that a train could not run past a station at a greater rate of speed than four miles an hour. Assuming, however, that there was evidence of such a rule, it is not certain that the rate of speed of the incoming train was the cause of the accident It is perfectly obvious that whatever the rate of speed, whether four or seven miles an hour, a collision with the stationary engine on the same track was inevitable, and the danger to those exposed to its effect unavoidable.

It is, therefore, quite immaterial whether the fireman was chargeable with the engineer’s carelessness, or want of skill, or not, as it was quite certain that the jury could, upon the evidence, find that there was no such want of care and caution in running the freight train as contributed to tbe accident

We think, in view of all the facts in the case, that it was the duty of the trial court to have submitted the case, on both of its branches, to the jury, and that it erred in withdrawing it from them.

The order of the general term should” therefore, be affirmed and judgment absolute ordered for the plaintiff, with costs.

All concur, except Peckham, J., not voting.


author: Freedman, J.

text:
    Annie Barrett, an Infant, App’lt, v. George Waldo Smith et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    (NEGLIGENCE—PROXIMATE CAUSE.
    Plaintiff was one of a crowd of children watching some boys trying to get a bird out of a hole in a st'me wall at a point where there was no sidewalk, when defendants’ team and heavy truck came along at a rapid speed, but in a straight line, over three feet distant from the wall. Plaintiff at first drew closer to the wall and then started to run across the street, and came in collision with one of the horses, although the driver attempted to turn them away from her. Meld, that the driver u-as not bound to anticipate this action on her part; that the rate of speed was not the proximate cause of plaintiff’s injury, exclusive of any other primary cause, and that the injury was the result of an unavoidable accident, for which defendants were not liable.

      Appeal from judgment dismissing complaint.

      Richard O’Gorman, Jr., for app’lt; James A. Seaman, for resp’ts.
   Freedman, J.

The action was brought by the plaintiff, an infant less than four years old, to recover damages for personal injuries, the result of her being run over by defendants’ team and truck driven by defendants’ driver. At the trial the complaint was dismissed on the sole ground that the evidence was insufficient to establish actionable negligence on the part of the defendants, and the only question presented by the appeal relates to the correctness of this ruling.

The injuries were sustained by the plaintiff in Fourth avenue, Between One Hundred and Seventh and One Hundred and Eighth streets in the city of Hew York, during the afternoon of July 22, 1890. At that place the actual width of the avenue was twenty-five feet from the curb on the easterly side of the avenue to a stone wall on the westerly side thereof. The roadbed between the stone wall and the curb was paved for a carriage road, and there was no sidewalk along the wall. It seems that a boy named Henry Peters had a bird, and in showing it to another "boy it flew out of his hands and went into a little hole in the stone wall. The boys ran over to get the bird. One knelt down and put his arm into the hole, and the other stood by and tried to help him. Then another boy and the plaintiff went there, and all the children were stationed around that hole in the wall when defendants’ team and truck came along. The team consisted of a .pair of work horses, and the truck was a heavy one, and had on it a load of five tons. The roadbed on the block in question, and indeed the entire distance between One Hundred and Fourth and One Hundred and Fourteenth streets, was nearly level.

The testimony as to the rate of speed at which defendants’ horses passed the point in question, varied somewhat. One witness thought they were going at the rate of six miles per hour. One of the boys said they were going fast. Plaintiff’s mother said they were flying. As a whole the testimony was unreliable and even improbable. But that presented a question for the jury, unless it appeared that the mere speed was not the real cause of the injury. To sustain the action the plaintiff was bound to show .affirmatively that negligence on the part of defendants’ driver was the proximate cause of the injury, exclusive of any other primary cause. Hegligence is never presumed or inferred from the fact that an injury has been sustained. So whenever the fact appears that the injury was occasioned by one of two causes, for one of which the defendant is not responsible, and for the other of which he is responsible, the plaintiff must fail unless his evidence shows that the injury was produced by the cause for which the defendant is responsible, and he must fail also if it is just as probable that it was caused by the one as by the other. Searles v. Manhattan Railway Co., 101 N. Y., 661.

All the evidence shows that while defendants’ horses and truck passed the spot where the children were stationed, there was a space of at least three feet between the wall and the horses and truck. One witness who apparently was the most intelligent of all the witnesses, made it even fifteen feet. There is not a particle of proof that the driver directed the horses towards the children. For all that appears he was going on a straight line, and according to the testimony of one of the witnesses, he quickly swung the horses away, almost into the gutter near the curb on the easterly side of the avenue, in order to avoid coming into contact with the plaintiff, but without being able to save the plaintiff

If, therefore, the plaintiff had remained where she was, she would have been safe. The other children remained near the wall and were not hurt But the plaintiff, at the moment the horses approached, first drew closer to the wall and then suddenly started to run across the street and thus came into collision with the horse nearest to the side of the wall. This was something which the driver who had the right to act upon the appearances as they presented themselves,- was not bound to anticipate. If there had been something in the appearances which called upon the driver to take notice that the plaintiff would attempt to run across, a different case would be presented. But in the absence of all evidence upon the subject, the driver is not chargeable with a neglect of duty in that respect The result is that the rate of speed at which the horses were driven, was not the proximate cause of plaintiff’s injury, exclusive of any other primary cause and that the injury was the result of an unavoidable accident

The question of contributory negligence in the plaintiff or her parents requires no consideration under the circumstances.

The judgment should be affirmed, with costs.

Sedgwick, Ch J., and McAdam, J., concur.


author: Per Curiam.

text:
    In the Matter of the Voluntary Dissolution of The Vertical Tube Boiler Co.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Corporations—Receiver.
    An order appointing a receiver of a corporation on its voluntary dissolution will not be amended so as to permit the entry of judgment in actions previously commenced against it and in which attachments were issued, where the receiver has not been made a party defendant or substituted for the company in such actions.
    Appeal from order denying motion of creditors who had filed a petition for the modification of the order of injunction appointing the receiver.

      Bullard & Shannon, for app’lt; J. C. O'Conor, Jr., for resp’t.
   Per Curiam.

Before the appointment of the receiver, the petitioning creditors had begun actions in the city court, and had obtained orders of attachment which had been levied upon property of the corporation. After the appointment of the receiver these petitioning creditors presented their petition that the order-of injunction against creditors be modified so as to allow the petitioners to enter judgment and issue executions in the actions in the city court.

The motion was denied on the ground that the receiver had not been made a party defendant or substituted for the company as defendants in those actions.

It clearly would not have been proper to allow the creditor to proceed ex parte, and without such protection to the assets as the presence of the receiver would furnish. Under all circumstances, if the attachments were valid, there was a lien upon the property levied upon which would be preserved, and, as far as proper, satisfied in the administration of the assets.

The appellants’ counsel insists that at least the injunction order should have been modified so as to allow the entry of judgment and the issuing of execution, unless the receiver should within ten days apply to be made a party defendant to the action, and such a modification was not asked of the court below. There is no reason for granting, at least at this time. If hereafter there is any improper delay on the part of the receiver, it will be in time to have due protection from the delay.

Order affirmed, with ten dollars costs.

Mo Ad am, J., concurs.


text:
    Benjamin F. Batchelder, App’lt, v. The Council Grove Water Co., Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Corporations—Bondholders—Rights op.
    Where the scheme of payment provided by a trust deed and mortgage of a corporation shows an intention that the bondholders should look to the mortgaged premises for security in case of a default in payment of the bonds; the question of foreclosure and sale to be determined by a majority of the bondholders, and that they should share ratably in the proceeds, a bondholder is not entitled to recover the principal of his bond in an action at law on failure to pay the interest, but only the interest represented by the coupons or interest warrants.
    Appeal from so much of a judgment entered upon the decision and by the direction of the special term of this court as by its terms “ adjudged that plaintiff is not entitled to recover of the defendant the principal of the bonds mentioned and described in the complaint in this action,” and also from that part of such judgment which, by its terms, “limited the recovery in the action to the interest upon said bonds represented by the interest warrants mentioned in the complaint,” and also from such parts of said judgment as awarded costs and an extra allowance to the defendant for the failure of the plaintiff to recover a more favorable judgment than the defendant had offered to allow to be taken.
    The plaintiff also appealed from the order granting the extra allowance and from an order refusing a rehearing upon the order granting the allowance.

      Thomas J. McKee (Samuel J. Crooks, of counsel), for app’lt; Isaac L. Miller, for resp’t.
   Freedman, J.

On the argument of the appeal it was conceded by the learned counsel for the appellant that if the judgment is right the order for the extra allowance is unassailable, which involves that in such a case the order refusing a rehearing upon the question of an allowance is also correct I have examined, therefore, only the question whether the judgment is right The facts of the case are somewhat different from the facts as they appeared in Mallory v. West Shore Hudson River R. R. Co., 35 N. Y. Supr. Ct., 174, but the difference is so unimportant as not to work a different result.

On a full and careful examination of all the instruments simultaneously executed in this case, viz., the bonds, the coupons and the trust deed or mortgage, for the purpose of discovering the true intent and meaning of the contract thereby made, the conclusion is unavoidable that,' upon default in the payment of the interest and the continuance of such default for a certain period named, the principal sum of each bond was to become due, not absolutely, but in the manner and with the effect provided in the trust deed or mortgage.

The scheme of payment provided by the trust deed or mortgage shows that it was intended that the holders of the bonds should look to the mortgage premises for their security in the event of default in the payment of the bonds; that the question of foreclosure and sale should be remitted to the discretion of a majority of the bondholders, and that the bondholders should share ratably in the proceeds.

The judgment and orders should be affirmed, with costs.

Sedgwick, Oh. J., and McAdam, J., concur.