text:
    George Werner, Resp’t, v. City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Municipal Cobpokation—Claim.
    Under § 80 of the charter of the city of Eochester, a claim, presented against the city, should state the time, place and circumstances with such reasonable accuracy, as to enable the officers, charged with the duty of investigating the circumstances, to determine whether the claim is meritorious.
    3. Same—Statement op negligence.
    , Such claim need not aver negligence on the part of the city.
    3. Same—Notice op intention to sue.
    Under said charter, the notice of intention to sue must be given within six months after the expiration of forty days from the presentation of the claim, but within a year from the time the injuries were received.
    Appeal from a j udgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      G. D. Kiehel, for app’lt; Herman W. Morris, for resp’t.
   Haight, J.

This action was brought to recover damages for personal injury, and for injury to property. Section 80 of the charter of the city of Rochester, as amended by the Laws of 1890 (chapter 561), among other things, provides:

“The common council shall examine, settle and audit" all accounts, demands and claims against the city. * * * No unliquidated claim or demand shall be received for audit unless made out in detail specifying, * * * if for damages for wrong or injury or negligence, when, where and how occasioned. * * * No action or proceeding to recover or enforce any claim, debt or demand against the city shall be brought until the expiration of 40 days after the .claim, debt or demand shall have been presented to the common council for audit in the manner and form aforesaid. * * * All actions brought against the city to recover damages or other relief for injuries to the person or property caused by negligence shall be commenced within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued. No action or proceeding shall be maintained against the city for personal injuries unless the notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have-accrued.”

The plaintiff claims to have presented a claim to the common council for audit on or about the 16th day of March, 1892, and another on or about the 1st day of August, 1892. The first notice of claim does not appear to have stated accurately the time and place at which the injury was received, and there may be some question as to whether it was ever presented to the common council for audit. We shall therefore confine our attention to the latter claim, the substance of which is as follows:

“ On the evening of December 21, 1891, while driving along the Big Ridge rpad, my buggy overturned, by coming in contact with a large pile of dirt in the middle of the street, at a point about one-third of a mile east of the Charlotte branch of the New York Central & Hudson River Railroad, as near as I can estimate the distance, and I was thrown to the ground. The buggy and harness were broken and damaged to the extent of $20.00. I was severely bruised and lamed, and was also rendered unconscious, by the fall, and remained in the street, in that condition, over an hour, and contracted a severe, sickness from the exposure, and was confined to.the house for several weeks, and put to considerable expense for medical attendance. I claim $200.00 for my personal injuries, which, with the damage to the buggy and harness, amounts to $220.00. The dirt had evidently been thrown up and left there by some one engaged in the construction of a sewer in the street. The night was very dark, and there were no guards or lights, of any kind, around the obstruction, to warn people of the danger. I am advised by counsel that my claim is a meritorious one, and I respectfully ask that your honorable body will allow it, and authorize its payment.” , '

As we have seen, the statute requires that the claim presented for audit in case of injury shall state “ when, where and how occasioned.” This statute should receive a resonable construction. The time, place, and circumstances should bq given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred. The claim presented by the plaintiff states that the injury was received on the evening of December 21, 1891; that the niglrt was very dark; that there were no guards or lights, of any kind, around the obstruction - that he was rendered unconscious by the fall, and remained in the street, in that condition, over an hour. The claim further states that the dirt was in the middle of the street, at a point about one-third of a mile east of the Charlotte branch of the New York Central & Hudson River Railroad, as near as the claimant can estimate the distance. We think these statements are sufficiently definite as to the time and place.

It is further contended that the claim presented by the plaintiff for audit is defective for the reason that it does not allege any negligence on the part of the defendant, or of any person for whose acts the defendant would be liable, but we find no such requirement in the statute. As we have seen, it requires the claimant to specify the time, place, and how occasioned. The claim presented for audit is not intended or required to be the complaint in the action or to contain the allegations that would be required to be incorporated in such complaint.

It is charged that this claim \vas not properly presented to the common council for audit, but the plaintiff’s attorney testified that it was presented to the common council on the 1st day of August, He then offered it in evidence. Its reception was objected to as immaterial. It was received by the court, and marked an exhibit in the case. No objection appears to have been made upon the ground that it'had not been properly or sufficiently proved that the claim had been presented to the common council for audit. We must, therefore, assume that further evidence upon that subject was waived.

It appears that the plaintiff served two notices of intention to commence an action for the injury sustained. One was served on the 1st day of August, 1892, and the other on the 24th of September, 1892. The first was seven months and eleven days after the injury was received, and the second, nine months and three days thereafter. As we have seen, the statute requires this notice of intention to be served “within six months after such cause of action accrued.” The question is thus presented as to when the cause of action accrued. Did it accrue at the time the plaintiff received the injury, or did it accrue after the expiration of forty days after the presentation to the common council of the plaintiff’s claim for audit ? In determining this question, we should, so far as possible, harmonize the various provisions of the act. No time is specified within which the claim must be presented to the common council. • No action, however, can be brought upon the claim until after the expiration of forty days after such presentation; and all actions brought for such damages must be commenced “ within one year from the time of receiving the injuries, or when the cause of action mentioned in the complaint shall have accrued,” and no action shall be maintained unless notice of intention shall have been filed within six months after such cause of action shall have accrued. We thus have two statutes of limitation, which majr be properly designated as the “one-year limitation” and the “six-months limitation.” In the former the action must be commenced within one year “from the time of receiving the injuries, or when, the cause of action mentioned in the complaiht shall have accrued.” We thus have the two expressions connected with the disjunctive “or.” If the former expression is to be disregarded, and the latter followed, the effect would be to nullify the provision, and leave no limitation whatever; for, as we have seen, no limit of time is placed upon the presentation of the claim to the common council, and no action can be maintained until 40 days thereafter. So that a claim could be presented to the council one, five, or ten years after the injury was received. We cannot, therefore, adopt this view. The two expressions, as used in this provision, must be understood, and were intended, to mean one and the same thing; and that is, that actions for injuries of the character described should be commenced within one year from the time of receiving the injuries, and the expression, “ or when the cause of action mentioned in the complaint shall have accrued,” has reference to the time of such injury. It may be that the 40 days given to the common council, within which to audit and allow the claim, and during which time the statute prohibits the bringing of an action, should not be counted as a part of the year given, within which the action must be brought. Brehm v. Mayor, etc., 104 N. Y. 186; 5 St. Rep. 661. But this question is not involved, and is therefore not necessary for us to here determine, for this action was brought within the year. We are thus brought to the concluding provision of the statute referred to,—that of the notice of intention. In this provision we have the same expression, “ after such cause of action shall have accrued.” Ordinarily, when We find the same expression used in various provisions of a statute, the same meaning should be given to each ; and yet we hesitate to follow that rule in construing this provision, for that phrase, when used independent of another, referring to the same time, has a well-defined meaning, and to follow the construction given to the phrase in the former provision would in this destroy the harmony "between this and other provisions. First, the statute requires the common council to examine, settle, and audit. Second, it requires a claim to be presented to them for audit. Third, they are given 40 days within which to determine the merits of the claim. All this has to be done before any action can be commenced, and, ordinarily, a cause of action has not accrued until it can be instituted. Again, the common council is composed of elective officers, whom the law presumes will discharge their duty. No reason is apparent why the notice of intention should be served during the time given to the common council to discharge its duty. It would rather seem impertinent to serve a notice containing a threat to commence an action while the common council was engaged upon a determination of the merits of the claim, in the discharge of its duty. But we think this provision is subordinate to the former provision, and in no case can it operate to extend the limitation given by that provision. It evidently contemplates that the claimant will, with reasonable promptness, present his claim to the common council; that, if the common council fails to audit and allow the same within 40 days thereafter, the claimant shall have the right to commence an action therefor; but before commencing such an action, and within six months from that time, and within the year given by the former and the general provision of limitation, notice of intention to commence such action must be filed with the counsel of the corporation, or other proper law officer. Steen v. Niagara Ins. Co., 89 N. Y. 315 ; Mayor v. Hamilton Fire Ins. Co., 39 N. Y. 45; Hay v. Star F. Ins. Co., 77 N. Y. 235; Fisher v. Mayor, 67 N. Y. 73. The judgment and order appealed from should be affirmed.

Lewis, J., concurs; Dwight, P. J., and Bradley, J., concur in the result.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Samuel P. Dexter et al., Resp’ts, v. Louis Adler, as Assignee, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March, 1894.)

    Appeal—Record.
    "Where it is stipulated by counsel that the record presented on appeal contains all the papers upon which the court below acted in making the order appealed from, but it is apparent that such is not the case, and there is nothing presented which shows that the court was wrong in the conclusion which it reached, the order should be affirmed.
    Appeal by the defendant, Louis Adler, from that portion of an order of the supreme court, made at the New York special term on the 27th day of June, 1888, and entered in the office of the clerk of the county of New York, sustaining the exception of the plaintiffs to the allowance by the referee of commissions to the defendant as assignee.

      A, Blumenstiel, for app’lts; F. Bien, for resp’ts.
   Van Brunt, P. J.

On the 5th of October, 1883, the firm of Adler Bros. & Newbower made an assignment for the alleged benefit of their creditors, to the defendant Louis Adler. An action having been brought by the plaintiffs to set aside the assignment, such proceedings were had that a judgment was entered therein on the 24th of May, 1886, setting the same aside, and appointing a receiver and a referee to take and state the accounts of the assignee. Such proceedings were subsequently had that in February, 1888, the referee made a report, to a portion of which report exceptions were filed, and in J une, 1888, an order was entered confirming the report except as to that part thereof which allowed the assignee’s commissions. An appeal was taken from that portion of the order which disallowed the commissions, and nearly six years thereafter the appeal seems to be brought on for argument.

Although it is stipulated by the counsel for the respondents and appellants that the papers presented upon this appeal contain all the papers upon which the court below acted in making the order, it is apparent that such is not the case; and there is nothing presented upon this record which shows that the court was wrong in the conclusion which it reached.

It is true that the record states that the only question before the court on this appeal is whether the assignee is entitled to commissions as- such, where the assignment is set aside on the ground of the assignor’s fraud only, but it does not appear from the papers before us whether any such record was presented to the court below or not, and, therefore, the order should be affirmed, with coáts.

O’Brien and Follett, JJ., concur. v

Order affirmed, with costs.


author: Per Curiam.

text:
    Robert J. Wright, App’lt, v. The Haskin Wood Vulcanized Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February, 1894.)

    Appeal—What brought up.
    Where no appeal is taken from the order denying a motion for a new trial, an appeal from the judgment brings up for review only the exceptions taken on the trial.
    Appeal by the plaintiff, Robert J. Wright, from a judgment of the supreme court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of April, 1893, upon the verdict of a jury after a trial at the New York circuit.

      Douglas A. Levien, for app’lt; Charles J. Hardy, for resp’t.
   Per Curiam.

There is no appeal from the order denying .the motion for a new trial, and under the settled practice this brings up for review only, exceptions.

The exceptions relating to rulings upon evidence, which are three in number, upon examination, we do not regard as tenable or as in any way affecting the verdict.

The only exception, other than those upon questions of evidence, is to the denial of the motion for a new trial, which brings up no question before us for review.

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

Present — Van Brunt, P. J., O’Brien and Follett, JJ.

Judgment affirmed, with costs.


author: Bischoff, J.

text:
    John Doherty, Resp’t, v. Samuel Lord, Jr., et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April, 1894.)

    1. Juros—Competency.
    Where a proposed juror admits that he has conceived a prejudice against plaintiffs generally in actions to recover damages for personal injuries, and that only strong evidence would induce him to find in plaintiff’s favor, his indifference between the parties is in doubt
    8. Same.
    Where such doubt is solved against the juror’s competency by the trial court, an appellate court should not disturb its determination
    3. Pleadings—Complaint.
    In an action for personal injuries, an averment in the complaint that the defendants were the owners of a truck and two horses, which were in the possession of, and driven by, their servant, is sufficient without special allegation that they were being driven in the course of the servant’s employment.
    4. Same—Proof of damages.
    Under an averment that the plaintiff was prevented for one month from attending to his duties, evidence showing nature of employment and value of earnings is admissible.
    5. Same.
    Tiie plaintiff is entitled, under a general allegation of damages, to recover for such pain and suffering as he has endured, and is reasonably certain to endure in the future.
    6. Evidence—Ownership.
    Evidence that the truck bore defendant’s name, in connection with their failure to deny their ownership, is prima facie proof that the truck was their property and the driver in charge of it their servant.
    7. Witness—Credibility—Impeachment.
    Admission of evidence tending to impeach a witness by proof that he made statements out of court conflicting with his testimony on the trial, sustained.
    8. Appeal—Charge.
    If the charge as a whole presents the questions fully and fairly, so that the jury are not misled, an exception to a part which, standing alone, may be open to adverse criticism, will not be available for the assignment of error.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff upon a verdict in his favor. Action to recover damages for personal injuries sustained from a collision with defendants’ truck, the truck being at the time in the custody and control of defendants’ driver, who carelessly or negligently drove it.

      Edio. W S. Johnson, for app’lts; W. T. B. Milliken, for resp’t.
   Bischoff, J.

The trial court properly rejected the juror to whose exclusion from service defendants’ counsel excepted. The juror alluded to admitted that he had conceived a prejudice againgi plaintiffs generally in actions to recover damages for personal iafc juries from the fact that he had been a defendant in such an actionf' and that only “ strong evidence ” would induce him to find in plaintiff’s favor. This we understand to mean that the juror had actual bias against plaintiff, which would prevent him from finding a verdict against the defendants upon a mere preponderance of the evidence, and that to overcome his bias the juror would require plaintiff to present a case free from all reasonable doubt. Such is not the rule in civil causes. N. Y. & Brooklyn Ferry Co. v. Moore, 1 Silv. Ct. App. R. 52 ; 1 St. Rep. 374. In answer to an inquiry by defendants’ counsel the juror subsequently stated that he thought he could render an impartial and just verdict upon the evidence. This did not conflict with his "previous statement as to the degree of the evidence which the juror would require of the plaintiff, and obviously did not exclude the fair inference that in the absence of absolute certainty of defendants negligence and plaintiff’s freedom from contributory negligence would not render a verdict in the latter’s favor. It was within the exercise of a sound discretion on the part of the trial justice, sitting as the trier of the competency of the persons summoned as jurors, to reject any of them whose indifference between the parties litigant was in doubt. Freeman v. People, 4 Denio, 35 ; Halsled v. Man. Ry. Co., 32 St. Rep. 109 ; 11 N. Y. Supp. 4. If the doubt be solved against the juror’s competency , an appellate court -should not disturb the trier’s determination. Reynolds v. U. S., 98 U. S. 245. “ It is certainly much to be desired that jurors should enter upon their duties with minds entirely free from prejudice. Perhaps, on general and public questions, is scarcely possible to avoid receiving some prepossessions, and where a-private right depends upon such a question, the difficulty of obtaining jurors whose minds are entirely unfluenced by opinions previously formed is undoubtedly considerable. Yet they ought to be superi- or to every exception; they ought to stand perfectly indifferent between the parties; and although the bias which was acknowledged in this case might not, perhaps, have been so strong as to render it positively improper to allow the juror to be sworn on the jury, yet it was desirable to submit the case to those who felt no bias either way, and, therefore, the court exercised a sound discretion in not permitting him to be sworn.” Mima Queen & Child v. Hepburn, 7 Cranch, U. S. 290, 297.

The complaint alleged that “ the defendants were then the owners of a certain truck or vehicle and two horses, which was then passing along said highway, in the possession of defendants’ servant, who was driving the same,” and defendants’ counsel moved the dismissal of the complaint at the opening of the trial for insufficiency, in that it was not alleged that the truck was being driven by defendants’ servant in the course of the latter’s employment. The presumption , however, was that the servant, while in charge of tiie truck, was acting within and not in violation of his duty. Turner v. Kouwenhoven, 100 N. Y. 115. Aided by this presumption, the averment of the complaint was sufficient, the motion to dismiss was, therefore, properly denied.

•The complaint further alleged that in consequence of the injury sustained by him from the collision plaintiff “ was for about one month prevented from attending to his business.” Defendants’ counsel objected to the introduction of evidence for plaintiff which tended to show the nature of the latter’s employment at the time of, and immediately before the collision, and the value of his earnings, on the ground that there was no sufficient allegation of special:damages. We are of the opinion that the complaint was sufficient if the loss of plaintiff’s earnings in the particular employment in which he was engaged at the time he sustained the injury may be considered special damage. But, if otherwise, the evidence was, notwithstanding, competent. Loss of time and the inability of the injured party to earn money, are among the main. elements of damage which naturally flow frotii an injury. Compensation for these is, therefore, part of the general damages to which the injured person is entitled, and is included in the allegation of the latter. Sutherland on Damages, vol. 1, § 93 ; Am. & Eng. Ency. of Law, vol. 5, p. 40. “ The plaintiff was entitled to recover (if at all) for the time lost in consequence of the injury received, and to show what it would have been worth to him.” Beisiegel v. N. Y. C. R. R. Co. 40 N. Y. 9, 10; see, also Ward v. Vanderbilt, 4 Abb. Ct. App. Dec. 521; Masterson v. Mount Vernon, 58 N. Y. 391. Loss of time and earnings are “ the direct and necessary consequences of the injury and sustained strictly and almost exclusively as an effect from it”; and evidence of the particular calling of the person injured “may have an application without any inquiry into any remote or contingent consequences which could not have been foreseen or.which are peculiar to the circumstances of the plaintiff.” Wade v. Leroy, 20 Ho. U. S. 33, 44. Being competent generally, the evidence objected to was admissible. If defendants wished to have its effect limited to particular aspects, it was incumbent upon counsel to - aslc the court to instruct the jury regarding-them. Gumb v. Twenty-third St. R. R. Co., 114 N. Y. 411, 414 ; 23 St. Rep. 748 is not to the contrary. There the plaintiff had been permitted to prove and recover, as j>art of his damages, moneys alleged to have been paid for assistance in his business during his incapacity. These payments were held to be special damages because not the inevitable result of the injury, and not recoverable because not alleged. Defendants’ exceptions to the admission of the evidence alluded to are, for the reasons stated of no avail.

A further exception appears to the admission of plaintiff’s testimony, which tended to show that his injury was continuous. Under a general allegation of damages, plaintiff was entitled to prove and recover for pain and suffering endured up to the time of the trial, as well as for such pain and suffering as he was reasonably certain to endure thereafter. We also ruled in Schuler v. Third Ave. R. R. Co., 1 Misc. R. 351; 48 St. Rep. 663, following the adjudications there collated.

It appeared in evidence that the truck with which the plaintiff collided bore the name of defendant’s firm. This fact, taken with defendants’ failure to deny their ownership, was prima facie evidence that the truck was defendants’ property, and the driver in charge of it their servant. Seaman v. Koehler, 122 N. Y. 646 ; 33 St. Rep. 729 ; Wylde v. Northern R. Co., 53 N. Y. 156 ; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. R. 302, 307; 52 St. Rep. 119 ; Wennerstrom v. Kelly, 57 St. Rep. 522; 27 N. Y. Supp. 326. Aside from these inferences, however, the evidence is abundantly to the effect that the truck was used by defendants, and that the driver was employed by them in their business.

Wesley, a witness for defendants, was asked on cross-examination : “Did you at any time tell him (Cullen) that the cause of the accident was because the driver pulled the wrong line? ” and to its admission defendants’ counsel objected and excepted. The witness had not previously testified to the manner in which the accident had occurred. The question was not admissible, therefore at the time, to impeach the witness’ credibility by showing that he had made statements out of court conflicting with his testimony. As the witness’ testimony then stood, the question plainly called for hearsay evidence, and so should have been excluded. Its admission, however, did not prejudice defendants, the witness answering that he did not make the statement. Subsequently, Wesley was recalled by defendants and then testified, in corroboration of the testimony of-the driver of defendants’ truck, that the overturning of plaintiff’scoach was due to the insecure position in which plaintiff had negligently placed the coach, the coach having been described by the driver as resting on its “ inside ” wheels on the top of some “ piles of dirt ” and the other wheels being in the roadway, on a level with the sidewalk, so that, by slight contact with it, the coach might be easily caused to turn over. Thereafter, plaintiff called Cullen as a witness in bis behalf, and against the objection and exception of defendants’ counsel the last named witness was permitted to testify to the fact that Wesley did make the statement denied by him. Cullen’s testimony in this respect was properly admitted. Wesley’s testimony, when recalled, rendered his denial of having made the statement to Cullen material. It was then competent to plaintiff to impeach Wesley’s credibility by showing that he made statements out of court which conflicted with his testimony on the trial, and to lay a proper foundation for the introduction of evidence of the conflicting statements, it was incumbent upon plaintiff’s counsel first to call the witness’ attention specifically to the matte.r as to which it was intended to contradict him , by asking him whether or not he made the statement. Meyer v. Campbell, 1 Misc. R. 283 ; 48 St. Rep. 666; Mead v. Shea, 92 N.Y. 122. It was the province of the trial court, at any time before the case was submitted to the jury, to correct any error in the admission of evidence by directing that the objectionable evidence be stricken out, and that the jury disregard it. Gall v. Gall, 114 N. Y. 109; 22 St. Rep. 746; Holmes v. Moffat, 120 N. Y. 159 ; 30 St. Rep. 779 ; Chesebrough v. Conover, 140 N. Y. 382 ; 55 St. Rep. 728. Such a direction was prevented by the testimony given by Wesley upon his recall. His denial of having made the statement to Cullen, and the latter’s affirmation that the statement was in fact made, became material and admissible on Wesley’s recall as tending to impeach his credibility. Plaintiff was entitled to have the contradictory testimony of the witnesses considered by the jury. It would have been error, therefore, if the trial court had directed the’testimony of either witness to be stricken out and disregarded.

Other exceptions which appear in the case do not merit discussion. The evidence was sufficient to sustain a finding that the collision with plaintiff’s coach was caused by the recklessness of the driver of defendants’ truck, and that the plaintiff was free from c on tribu tory negligence. The charge embodied every essential instruction in such cases. Whatever error was predicable of any isolated part of the charge, to the effect that defendants were liable unless plaintiff could have avoided the collision by-the use of reasonable care, was cured by the subsequent instruction to the jury that “ if the accident happened through the negligence of the driver of the defendants, with no negligence on the part of the plaintiff, then the verdict must be for the plaintiff.” If the charge, as a whole, presents the questions fully and fairly, so that the jury were not misled, an exception to a part, which standing alone, may be open to adverse criticism, will not be available for the assignment of error. Hickenbottom v. D. L. & W. R. R. Co., 122 N. Y. 91; 33 St. Rep. 312.

The judgment should be affirmed, with costs.

Bookstaver, P. J., and Pryor, J., concur.


text:
    Thomas Farrell, Resp’t, v. Johh L. Amberg, Substituted as Defendant in the Place and Stead of the Church of St. Francis of Assisi, App’lt.

      (New York Common Pleas, General Term,

      Filed April, 1894.)

    1. Pleadings—Construction.
    In construing a pleading, resort may be had to its several parts to ascertain what is intended to be alleged or denied.

      2. Same.
    Where a material statement in a pleading is susceptible of two or more different meanings, that which is most favorable to the pleader must be accepted as the one intended.
    3. Same—Answer—Reply.
    In the absence of an order, the plaintiff need not reply to new matter in an answer, not amounting to a counterclaim.
    4. Same—Admission.
    . The statement of a conclusion of law is not admitted because not specifically denied.
    8. Power oe attornet—Irrevocable.
    A power of attorney, given to secure the repayment of money upon a contract, is irrevocable, in the absence of allegation or proof of facts showing such repayment. 11
    Appeal from a judgment for plaintiff which was entered on the report of a referee. Action to recover the balance due upon a building contract; the original defendant having admitted its liability and paid the money into court; and the issues between plaintiff and the defendant impleaded, and substituted, involving only the determination of conflicting claims to those moneys.

      Edw. W. S. Johnston, for app’lt; Nelson S. Spencer, for resp’t.
   Bischoff, J.

This action was originally brought to recover the sum of $7,703.35, with interest, the balance claimed to be due from tho Church of St. Francis of Assisi, under a contract for the construction of its building. The church admitted the due performance of all the work, and its liability in the amount claimed, but asserted that one John L. Amberg ha’d made claim to the moneys adversely to plaintiff. On notice to plaintiff and John L. Amberg, the original defendant was, by order, permitted to pay the moneys into court, and directed to be discharged as a party to the action, and said John L. Amberg was substituted in its place.

It is not disputed that the pleadings concede that on May 16th, 1891, the Church of St. Francis of Assisi entered into a contract with one Henry H. Amberg, whereby the latter undertook to construct a building for a specified compensation to be paid him by-the former, and that, for the due performance of the contract on his part, he executed and delivered his bond, with plaintiff, as surety; that on July 14th, 1891, Henry H. Amberg assigned the contract to his brother, John L. Amberg; that on the same day John L. Amberg executed his power of attorney to plaintiff whereby the latter was authorized, in the place and stead of the former, “to furnish, complete and finish all the work, labor and materials required to be done and furnished in and by” the building contract above mentioned, and to “ collect and receive all moneys due or to become due on the said contract,” and that the contract, assignment and power of attorney were delivered to plaintiff. The complaint further alleges that the contract was assigned, and the power of attorney executed and delivered, “in purshance of an agreement whereby the plaintiff agreed to furnish the money necessary to carry out said contract, and in his own name to make all the purchases of material and to employ and pay all the labor necessary for the execution of said contract, and to complete and finish the work required to be done thereby.” Also, that the assignment was made and the power of attorney given to secure “ the plaintiff all rights to receive the consideration named in said con- • tract,” and that “ the said assignment and power of attorney were executed and delivered, instead of an assignment of said contract, directly to the plaintiff, because of the existence of said bond and to secure the defendant’s rights thereunder.” The fourth paragraph of defendant’s answer specifically admits, in almost identical language, the first above referred to allegation of the complaint, and “that the said assignment and power of attorney were executed, instead of an assignment of the contract, directly to the plaintiff, because of the existence of the said bond and to secure the plaintiff’s rights thereunder,” as alleged in the paragraph of the complaint numbered 1 Fifth,’ ” but denies that the power of attorney and assignments were made pursuant to a suggestion of counsel for the Church of St. Francis of Assisi, or prepared by him for the purpose of securing the plaintiff’s rights in said contract. The eighth paragraph of defendant’s answer alleges “ that the said contract was delivered and the said power of attorney was executed and delivered to the plaintiff by the defendant because the plaintiff had become surety for the said Henry PI. Amberg to the original defendant herein, The Church of St. Francis of Assisi, for the performance of said contract, and were executed and delivered for the -purpose of securing the plaintiff’s rights thereunder.” Whereunder? Clearly, the contract; and any claim that “thereunder” refers to the bond is a palpable effort to distort the plain inference and grammatical sense of the language used. It is apparent, therefore, that the general denial at the conclusion of the paragraph, as well as the denial that the assignment and power of attorney were made at the suggestion of counsel for the Church of St. Francis of Assisi, or prepared^ by him to secure the plaintiff’s rights under the contract, was not intended to comprehend the second allegation of the complaint referred to,1 that the assignment and power of attorney were made and given' to secure “the.plaintiff all rights to receive the consideration! named in said contract.”

The denials that counsel for the Church of St. Francis of Assisi' suggested the execution and delivery of the instruments, or that he prepared them, intending thereby to afford plaintiff security, are of immaterial matter in view of the admission that defendant, in fact, gave them for the purposes of such security. In construing a pleading resort may be had to its several parts to ascertain what was intended to be alleged or denied, Whitney v. Ticonderoga, 53 Hun, 214; 24 St. Rep. 950, and only that which is fairly implied from the language used will be deemed to be alleged. Cook v. Warren, 88 N. Y. 37 ; The Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 240. Section 519 of the Code of Civil Procedure, which provides that pleadings shall be liberally construed, applies only to matters of form, Clark v. Dillon et al., 97 N. Y. 370; and when a material statement in a pleading is susceptible of two or more different meanings, that which is most unfavorable to the pleader must be accepted as,the one intended. Clark v. Dillon et al., supira; Bunge et al. v. Koop et al., 48 N. Y. 225, 231.

It is doubtful whether the general denial at the conclusion of the eighth paragraph of the answer is at all available to defendant. Baylis v. Stinson, 110 N. Y. 621, 623; 16 St. Rep. 175. -The complaint also alleges that the work required to be done under the building contract had been fully and completely performed, and that the plaintiff had paid, laid out and expended all moneys required in that behalf for labor and materials; and the answer ■ admitted the performance, but denied the advance of any moneys by the plaintiff. Defendant, by answer, furthermore claimed that the plaintiff had been fully reimbursed for all moneys advanced, and was saved harmless from all liability under his bond by the due and complete performance of the contract and acceptance of the work by the Church of St. Francis of Assisi. Three distinct and separate defenses, two of which were asserted also as offsets and counterclaims, and the other as a defense and offset only, were interposed to the complaint. One of these defenses and counterclaims charges the plaintiff with the conversion of money received under the building contract, but this is conceded to be sufficiently denied by the reply. The other defense and counterclaim alleges the facts of the delivery of the contract, assignment and power of attorney, for the purposes stated in the complaint and admitted by the answer, and'then further alleges that the power of attorney was revocable upon reimbursement to plaintiff for the money advanced by him, and that it was in fact revoked by service of a notice of revocation upon the Church of St. Francis of Assisi, but nowhere charges the plaintiff with the receipt of any money in excess of the sums advanced. The third and remaining one of the defenses, that which was also pleaded as an offset only, alleges payment by plaintiff’s receipt of money which accrued under the contract sufficient to reimburse him for any money advanced. It is apparent from the mere statement of them that, while the two last above mentioned defenses may have been properly pleaded as such, as well as offsets, neither was availably as a counterclaim. In the absence of an order, therefore, that plaintiff be required to reply to new matter pleaded in the answer, no reply was necessary. Section 514 of the Code of Civil Procedure requires a reply to a counterclaim only, and § 516 dispenses with a reply in every other case unless one is directed to be served by order made on defendant’s application. Accordingly, in the absence of such an order ho reply is necessary to mere matter of avoidance, or to matter constituting an offset or recoupment, or alleged as payment, Cockerill v. Loonan, 36 Hun, 353; Am. Dock & Imp. Co. v. Staley, 8 Jones & Sp., 539; Burke v. Thorne, 44 Barb., 363; Scott v. Stockwell, 65 How. Pr., 249; Baylies’ Code Pl., ch. 13, p. 287; and plaintiff did not, therefore, admit, as defendant’s counsel contends, byfailure to reply to the pretended counterclaim last above mentioned, that the power of attorney was given solely to secure plaintiff against any liability upon his bond, assuming such to' be the allegation of the answer upon, a proper construction, or that the power of attorney was revocable and revoked. Again, any allegation that the power of attorney was revocable and. revoked by service of notice of revocation, implies no more than the statement of legal conclusions, not of facts, and so for that reason also was not admitted because not denied. The allegation of a legal conclusion is an immaterial averment. Scofield v. Whitelegge, 49 N. Y. 259; People ex rel. Purdy v. Coms, of Highways, 54 N. Y. 276. Only material matter, not controverted by answer or reply, shall be taken as admitted. Code of Civil Pro., § 522.

For the reasons hereinbefore stated, therefore, when the action proceeded to tidal, the following also were among the admitted facts: That the building contract, as well as the assignment thereof to Henry H. Arnberg, and the power of attorney from the defendant to the plaintiff, were delivered to the plaintiff pursuant to an agreement that the plaintiff should be by their means secured against all liability under his bond for the performance of the building contract, as well as for all moneys advanced by the plaintiff in the performance of the contract. The only testimony taken was that of the plaintiff, which was to the effect that the contract, assignment and power of attorney were delivered to him simultaneously, that the work called for by the contract was done, and that he had paid all the money required for labor and materials in the performance of the work. Defendant offered in evidence a notice by him of revocation of the power of attorney, which was conceded to have been served upon the plaintiff and the Church of St. Francis of Assisi before the commencement of this action. No further evidence of any kind was adduced by either party, and the cause was thereupon submitted to the referee, who decided that the power of attorney was not revocable; that it was not revoked by defendant; and that plaintiff was entitled to recover the moneys paid into court.

The referee’s findings of fact are consistent with all the admitted facts and plaintiff’s testimony. No error is, therefore, predicable of the referee’s refusal to find to the contrary. The power of attorney also was one coupled with an interest. Hence the referee’s conclusions that the power of attorney was not revocable, and was not revoked by the service of defendant’s notice of revocation, in the absence of proof that the plaintiff was reimbursed for his outlays by his receipt of moneys which had accrued under the building contract, or otherwise, cannot be successfully controverted. “ As the power of one man to act for another depends on the will and license of that other, the power ceases when the will, or his permission, is withdrawn. The general rule, therefore, is, that a letter of attorney may, at any time, be revoked by the party who makes it; and is revoked by his death. But this general rule, which results from the nature of the act, has sustained some modification. Where a letter of attorney forms a part of a contract, and is a security for money, or for the performance of any act which is deemed valuable; it is generally made irrevocable in terms, or, if not so, is deemed irrevocable in law. Although a letter of attorney depends, from its nature, on the will of the person making it, and may, in general, be recalled at his will, yet, if he binds himself for a consideration, in terms or by the nature of his contract, not to change his will, the law does not permit him to change it.” Chief Justice Marshall, in Hunt v. Rousmanier, 8 Wheat. 174; see, also, Knapp v. Alvord, 10 Paige, 205; Raymond v. Squire, 11 Johns. 47; De Forest v. Bates, 1 Edw., Ch. 394; Hutchins v. Hebbard, 34 N. Y. 24. A power of attorney to collect a fund, given to secure the payment of a debt due from the donor to the donee of the power, operates as an equitable assignment of the fund. Raymond v. Squire; De Forest v. Bates, supra ; Wilson v. Troup, 2 Cowen, 195. An equitable assignment is none the less so because the interest it conveys is qualified and conditional. Holmes et al. v. Evans et al., 129 N. Y. 140; 41 St. Rep. 365.

We assume that the plaintiff’s liability upon his bond, given to secure the due performance of the building contract with the Church of St. Francis of Assisi, had ceased, and that to that extent his interest in the moneys to be collected upon the contract had reverted to defendant; but it still remained to show, to extinguish the plaintiff’s remaining interest in the moneys, that he had. been reimbursed for all moneys paid, laid out and expended by him. That fact was not admitted by the pleadings or on the trial. Its proof was incumbent upon defendant, who failed to supply it.

The judgment should be affirmed, with costs.

Bookstaver, P. J., and Pryor, J., concur.


author: Van Wyck, J.

text:
    Thomas Sheffield, App’lt, v. David W. Smith, Resp’t.

      (Brooklyn City Court, General Term,

      Filed April, 1894.)

    Power op attorney—Authority.
    Where the defendant gave his son a power of attorney to transact all business of whatever name or nature, and to sign his name as such attor neyfor any purpose deemed necessary for the transaction of such business or any part thereof, and informed the party, through whom he had made an offer to exchange lands with plaintiff, that he had given such power of attorney, the son is authorized to sign a contract for the exchange, including an agreement for the payment, by the party failing to perform, of a sum of money as fixed and settled damages for such default.
    Appeal from judgment dismissing the complaint.

      Martin K Halpin, for app’lt; Stephen W Collins, for resp’t.
   Van Wyck, J.

This is an appeal from a judgment dismissing the complaint, with costs, entered upon the decision of the judge at special term.

The plaintiff brought this action to recover from defendant $500, the amount agreed upon in a contract for the exchange of real estate “ as fixed and settled damages ” to be paid by the party failing to perform his part of the contract. The defendant refused to perform on his part, and set up in his answer herein that his son, Abel Smith, who executed the contract in defendant’s name, was not authorized to make for him any agreement for exchange of the real estate, and was specifically directed by defendant not to make this agreement of exchange, and that Abel Smith was induced by the fraud and misrepresentations of plaintiff to sign the contract. The defendant and his son, Abel Smith, both testified that the latter was not authorized to sign any contract of exchange for the former. They were contradicted by witnesses to whom both had stated that Abel Smith was authorized to sign a contract for exchange of the real estate in question. The court decided that there was no fraud, and by the fifth, seventh, eleventh and fourteenth findings of fact, that Abel Smith was authorized to sign a contract of exchange, and did enter into the contract in question as the agent of his father, the defendant; but, by the twenty-sixth finding of fact, decided that Abel Smith was not authorized “ to bind defendant in any sum of money to the plaintiff in any event whatsoever,” and, as a conclusion of law therefrom, held the complaint should be dismissed. The twenty-sixth finding seems to be inconsistent with the seventh finding, in which the court held that the contract in question was entered into by Abel Smith “ on behalf and as the agent and attorney in fact for his father, the defendant herein ” Without further referencee to such seeming inconsistency, we will now consider whether this twenty-sixth finding is sustained by the evidence. It must be remembered that the court has found that both the defendant and his son, Abel Smith, testified falsely when they swore that the latter had no authority to sign for the former a contract of exchange of his property for that of the plaintiff. The defendant testiSed that he was .engaged in no regular business in May and J une, 1893, and that he had no business during that period except his efforts to dispose of the premises in question by sale or exchange, and that he was about to go xyest at that time with the idea of making a long sojourn there. According to the testimony of defendant and other witnesses, it appears that defendant, just before starting for the west, had offered his property and $1,000 for plaintiff’s premises, subject to the approval of his son after his personal inspection thereof, informing the party through whom such offer was made that his son had a power of attorney. It is dated May 20, 1893, and is a general power of attorney authorizing his son to transact all of his business, of whatever name or nature, and to sign his name, as such attorney, for any purpose that his son may deem necessary for the proper transaction of such business, or any part thereof. After defendant departed for the west, his son inspected the premises and approved of the exchange, and signed the contract of exchange containing an agreement that if either party failed to perform, he should pay to the other party $500 as fixed damages for such default. We think the son was authorized, under the circumstances, to sign the contract for defendant, in•cl tiding all its terms.

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

Clement, Ch. J., concurs.

Judgment reversed and new trial ordered, with costs to plaintiff to abide the eveijt.


author: Osborne, J.

text:
    Francis De Clemente et al., Resp’ts, v. Eliza H. Winstanley et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed April, 1894.)

      1. Ejectment—Verdict.
    In an action of ejectment, the verdict in favor of the plaintiff should define the land, of which he is entitled to the possession.
    3. Same—Amendment.
    If it fails to do so, it is too late to amend or correct it on appeal.
    Appeal from judgment in favor of the plaintiffs.

      G. G. & F. Reynolds, for app’lts ; F. R. Hartman, for resp’ts.
   Osborne, J.

This was an action in ejectment. The compaint, in brief, alleged plaintiffs’ ownership “ in fee of the premises No. 185 York street, in this city, consisting of a house and lot, said lot being twenty-five feet in front and rear by, one hundred feet in depth on each side ; ” that defendants owned the adjoining lot on the west; that defendants had erected a fence between said two lots which was not on the true division line, and had also erected a building partly on the land of plaintiffs and partly on their own land ; that defendants refused to remove said fence and building off plaintiffs’ land, whereby plaintiffs have been deprived of the full and free use of their land, to their damage in the sum of $5,000 and they demand judgment for said sum ; “ that defendants be directed to remove said fence and structure,” and that they have such other judgment or decree as may seem just. In-their answer defendants deny the trespass and allege more than twenty years of adverse possession. On the trial plaintiffs sought to show that the division fence and the rear building on defendants’ lot encroached on plaintiffs’ premises about one foot at the rear, and that the fence line ran from that point to the front of the lot, where it struck the true division line. Defendants sought to establish twenty years’ adverse undisputed possession of their lot as fenced.

The jury found a “ verdict in -favor of the plaintiffs that they are entitled to possession of the strip of land described in the complaint, in fee simple, and assessed the damages at six cents.”

On this verdict judgment was entered adjudging “that the plaintiffs (naming them) recover of the defendants (naming them) the possession of the real property described in the complaint, and further, that they recover of the defendants the sum of six cents-damages for the withholding thereof,” etc.

Defendants appeal from this judgment.

We think that there was a mistrial here, and that the judgment cannot stand, owing to the form of the verdict which was rendered. The jury found, as above stated, that 'plaintiffs were “ entitled to the possession of the strip of land described in the complaint; ” if we refer to the complaint to interpret this verdict we find no “ strip of land ” therein described ; the only real properties referred to in the complaint are “ the premises known as No. 185 York street,” being twenty-five by one hundred, which plaintiffs allege ownership of, and “ the adjoining lot on the west side of the above described premises,” alleged to belong to the defendants; nor does the judgment help the verdict, for that merely adjudges that “ plaintiffs recover of the defendants the possession of the real, property described in the complaint.” This judgment literally construed, would entitle plaintiffs to possession of their own lot and to that of the defendants. If execution to enforce this judgment was issued to the sheriff, it would furnish him no clue to-carry it out: he could not, of course, refer to the record to find out that all that it was really intended that he should do was to put plaintiffs in possession of a narrow triangular strip-in the rear of the premises, one foot wide at the base and running to a point on the side of their lot adjoining the lot of defendants. It was never-intended in a judgment of ejectment, that the sheriff should employ surveyors to determine. and define just what premises he should put the prevailing party in possession of, and yet an attempt to enforce this judgment would require the sheriff to locate his starting point, and himself run the lines of plaintiffs’ lot. The verdict should have been corrected in the first instance so as to define exactly what land plaintiffs were entitled to possession of; that was not done, and, of course, the verdict cannot now be amended or corrected.

The judgment must be reversed and a'new trial ordered, with costs to defendants to abide the event.

. Clement, Oh. J., concurs.

Judgment reversed and a new trial ordered, with costs to defendants to abide event.


author: Clement, Ch. J.

text:
    John W. Crawford, Jr., Administrator, etc., Resp’t, v. The Wilson & Baillie Manufacturing Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed April, 1894.)

    2. Negligence—Child.
    It is not negligence, as matter of law, for a child, even though non sui juris, to play upon the sidewalk.
    2. Same—Excavations.
    One, who causes excavations to be made in the sidewalk, must take reasonable precautions for the security of travelers.
    8. Same—Watchman.
    If there is danger, in a thickly settled neighborhood, that the guards may be thrown down by boys, a watchman should be stationed to see that they are kept up.
    Appeal from judgment in favor of the plaintiff, entered upon a verdict, and from order denying motion for a new trial.

      Chas. C. Nadal, for app’lt; John C. Bohinson, for-resp’t.
   Clement, Ch. J.

This action ivas brought by the plaintiff as administrator of his son, who was eight years old at the time of his death, to recover damages under the statute. It was proven that the defendant, as contractor with an elevated railroad company, by its employes, dug ten excavations on the sidewalk about seven feet deep and six feet square, in the block on Third avenue between Forty-eighth and Forty-ninth streets. These holes were lawfully made for the foundations of the columns of an elevated railroad in course of construction. On March 20, 1893, the deceased and other boys were riding in a boy’s wagon between half-past five and six o’clock. There is a down grade at the point in question, and the wagon was allowed to run down of its own weight. The boy was riding in this way until the wagon came near the hole, when it took a sudden turn, and both wagon and boy were thrown into the hole. There was no protection of any kind around the hole when the boy fell in. The boy died on the following day from the result of his injuries.

We are of opinion that the deceased was not guilty, as matter of law, of contributory negligence, and that such question was properly submitted to the jury. He was, at the time of his injury, only eight years and twenty-one days old It is not negligence, as matter of law, for a child to play noon the sidewalk, even if it is so young as to be non sui juris. Huerzeler v. Central Crosstown R. R. Co., 139 N. Y. 490 ; 54 St. Rep. 863. In view of the want of experience of the deceased, it is clear that the case could not be dismissed on the ground of contributory negligence.

The question whether or not there was negligence on the part of the defendant, was also one of fact. The defendant, if it caused excavations to be made in a sidewalk, was bound to take reasonable precautions for the security of travelers. The law as to interference with the highway is strict. Judge Earl said in the case of Seaton v. Zett, 44 N. Y. 430, 432 :

“ It is a well-settled rule that a person who interferes with a sidewalk in a city, and leaves it in a dangerous condition, is liable for injuries caused thereby,'whether he knew it to be dangerous or not, and irrespective of any permission from the public authorities to do the work from which the injury arises.” There is no dispute in the case that /at the time the boy fell into the hole, there was no' protection around it, although, as above stated, it was seven feet deep and six feet square and located in the .sidewalk. The witnesses for the defendant testified that it had been protected by barrels and planks, and the defendant’s counsel claims, though there is no direct evidence, that other boys had pushed the planks and barrels into the hole shortly before the deceased fell in. Thomas Ward, the foreman of the defendant, says he saw the excavation at four o’clock, and it was then protected by two barrels and three planks, and on cross-examination testified that the edge of the hole between the barrels had no protection except such as was afforded by a plank laid on them at a distance of three and one-half feet from the ground, and he also testified that there was no special watchman detailed to watch these holes in the day-time. Mrs. Tiedemann testified that she lived directly opposite the place of the accident, and at noon of that day there was no protection around the hole. This testimony was properly admitted in view of the testimony of the defendant’s witnesses, for they went back three days to prove that the hole had been guarded all the time.

Títere was no witness for the defendant who testified that he saw the hole guarded after five o’clock. The accident happehed perhaps as late as a quarter before six. The foreman of the defendant said that they had great trouble with boys, who threw down the guards and stole the barrels. It would seem that, if the guards were liable to be thrown down by boys in a thickly settled neighborhood, it was incumbent on the defendant to have a man especially detailed in the day-time to see that the guards were kept up. The defendant did not discharge its duty when it put up two barrels and three planks around the hole in question, even if that was a sufficient warning to the public. The defendant was bound to exercise care to see that the barriers were kept up all the time. If boys were in the habit of removing the guards, then the defendant was bound to be more vigilant.

When the plaintiff proved that there were no barriers at the time the child was injured he made out a prima facie case. That fact was afterwards admitted by all the witnesses for the defendant. Whether there were guards to the-hole in question was a question of fact for the jury, and whether or not they had been removed by the defendant’s employes, in the course of their work, was also a question of fact. If the jury found that the barriers had been removed by boys, whether the defendant did or did not have a reasonable time to replace them was a question of fact. The trial judge instructed the jury correctly on this point.

The exceptions at folios 102 and 103 cannot help the defendant. No proof was given as to the amount of the doctor’s bill, and as the child only lived one day, counsel seems' to have waived it. Whether plaintiff did or did not pay the physician was properly admitted, and whether, he paid the undertaker also was a proper question. If the proper evidence was not afterwards supplied, the counsel for defendant should have called the attention of the court to the fact, and have asked that the testimony be struck out, or that the jury be instructed not to give damages for the undertaker’s bill. If the exception was well taken as to the bill for funeral expenses, it would simply lead to a reduction of the verdict by the amount of such bill, and not to a reversal. On the whole we think that the defendant cannot now complain, for the court would have charged the jury, if requested, that the undertaker’s bill should not be included in the damages. The judgment and order denying new trial should be affirmed, with costs.

Osborne, J., concurs.

Judgment and order affirmed, with costs.


text:
    Charles T. Barney et al., Resp’ts, v. The Mayor, etc., of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May, 1894.)

      1. Taxes—Department oe Public Parks—Power.
    The department of public parks in the city of New York has no power to lay out a park within any district outside of the twenty-third and twenty-fourth wards.

      % Same—Exemption. ?
    Land situated within the lines of a proposed park outside of said wards is not, therefore, exempt from taxation.
    Motion for new trial by the defendants upon exceptions ordered to be heard, in the first instance, at 'the general term.

      O. L. Sterling, for motion; J. A. Flannery, opposed.
   Van Brunt, P. J.

This action was brought to recover from the city of New York a sum of money paid as taxes for the year 1887, upon certain real estate between Twelfth avenue and the Harlem river, at about One Hundred and Ninetieth street. It is claimed upon the part of the plaintiffs that the tax imposed was illegal and was. paid by them involuntarily; and that they were entitled to recover the amount. The plaintiffs’ land is within the lines of a so-called park, shown on a map filed by the commissioners of the department of public parks in the city of New York on the 17th of April, 1884, they claiming to act in pursuance of authority conferred upon them by chap. 410 of the Laws of 1882. It is urged that by chap. 530 of the Laws of 1885, amending § 672 of the Consolidation act, such lands were exempt from taxation ; and that they were taxed and the tax paid, in ignorance of the exemption, and that such payment was involuntary.

In view of the decision of the court of last resort in respect to involuntary payment of taxes and assessments, we think that the plaintiffs brougiit themselves within the rule authorizing a recovery.

The question as to whether the lands of the plaintiff were exempt from taxation, and therefore, the tax levied was illegal and void, presents a question of much1 greater embarrassment. There is no question but that tlie department of public parks did file a map showing a park thereon, which included the premises of the plaintiffs and if such department had the power to lay out such park under the authority given them by law, then the tax levy was illegal and void. This question of power, it seems to us, must be determined by the Consolidation act, as by that act the other provisions of law, conferring. powers upon the department of public parks in this respect, seem to have been repealed; because the Consolidation act presents a complete and revised system for laying out and opening public places, and providing for the proceedings in respect thereto.

By § 670-of the Consolidation Act it is provided that: “The department of public parks shall have and possess exclusive power to lay out, survey and monument all streets, roads, avenues, public squares and places within that part of the city of New York, north and east of a line commencing at the termination of the southerly line vof One Hundred and Fifty-fifth street,” etc.-—a description covering the territory in which the lands of the plaintiff were situated. And the question presented is whether a park is to be considered a public square or place within the. provisions of. this section. The history of legislation prior to the adoption of the Consolidation act, which was in 1882, shows but little uniformity in legislative designation of public parks, public squares and public places. Many of the largest parks of the city were designated as public places, and spoken of as public places. But since the establishment of the department of public parks in 1870, there has been seemingly a disposition on the part of the legislature, in dealing with the question of public parks and public places, to make a distinction. And it is significant that in § 671 (the section following the one'to which attention has been called), in treating of the territory embraced in the Twenty-third and Twenty-fourth wards, and in conferring power upon the' department of public parks in respect thereto, it is provided that such department shall have the exclusive power to locate and lay out, construct and maintain all public parks, streets, roads, avenues, etc., apparently showing that the legislature had in mind the question of public parks, as distinguished from anything that had been referred to in the preceding section, in which the department was given the power to lay out, survey and monument all streets, avenues, public squares and places within the .territory described, but not to construct or maintain anything said to be public parks. Had legislation stopped here, we think there would have been no question in regard to the fact that the legislature did not intend that the department of public parks should have the right to lay out, survey and monument public parks within any district outside of the Twenty-third and Twenty-fourth wards. But when the legislature comes to confer the power to acquired the title of the land in the Twenty-third and Twenty-fourth wards, it uses this language:

“ Section 677. The Department of Public Parks for and in behalf of the Mayor, Aldermen and Commonalty of the City of New York is authorized to acquire title for the use of the public to all or any lands required for the streets, avenues, roads, public squares and public places laid out by them in the Twenty-third and Twenty-fourth Wards the City of New York ” — public squares and public places not having been mentioned in § 671, which gave the department the power to lay out, construct and maintain ; and public parks not being mentioned in § 677, which gave the department the right to acquire title.

By § 956 it is provided that the department of public works shall possess certain powers in relation to the opening of streets, avenues, roads and public places above Fifty-ninth street, except in the Twenty-third and Twenty-fourth wards, and not embraced within the limits of- or immediately adjacent to any park or public place except as in this act otherwise provided.

Then by § 957 it is provided that the department of public parks shall have the exclusive power to locate and lay out all public parks, streets, roads, avenues, and to devise plans, etc., in the Twenty-third and Twenty-fourth wards And § 958 seems to be an exact copy of § 677.

It will thus be seen that in many of the sections in which this subject is referred to, distinctions between public parks and" public places seem to be maintained, and that it is only by giving the most enlarged signification to the language used by the legislature th-tt it can be held that under § 670 the department of public parks hadtlie right to lay out, survey and monument the parkin question. It is true that in §§ 677 and 958, in dealing with the question of the laying out of the Twenty-third and Twenty-fourth wards, the words public squares and places are mentioned in respect to the acquisition of title, when the legislature, in dealing with the question' of the power to locate and lay out, did not use such words, but the words public parks. It seems to us that the only result of this difference is that the legislature, perhaps, intended to give authority to the department of public parks to lay out parks in the Twenty-third and Twenty-fourth wards, but did not intend that .they should be able to consummate their design by the acquisition of title, so that they might construct and maintain.

Without being able to satisfy our minds entirely, in consequence of the confusion of language in the legislation respecting this matter, we do not think that such an extraordinary power should be deemed to have been conferred by the legislature upon the department of public parks, unless the acts to be construed show a reasonably clear intention so to do. We think that such intention is not by any means clear, but that a distinction seemingly having been recognized between public parks and public places, as above mentioned, and no clearly defined pover having been conferred upon the department to lay out public parks, and there being nothing to indicate any intention to confer -such power, it .should be held that such department did not possess the same,

The exception should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Follett and Parker, JJ., concur.


author: Smith, J.

text:
    The People ex rel. Frederick L. Taylor, Pl’ff, v. Charles S. Seaman, Sheriff of Tompkins County, Def't.

      (Supreme Court, Schuyler Special Term,

      Filed May, 1894.)

    1. Habeas corpus--Certiorari.
    The relator has the same rights under a writ of habeas corpus as under the two writs of habeas corpus and certiorati to inquire into the cause of his detention.
    2. "Wransss—Privilege.
    A witness before a grand jury, though wholly innocent and asserting his innocence, is entitled to the protection against revealing any fact which may tend to charge him with crime.
    3. Same.
    To secure this privilege, the witness must make oath that, in his opinion, the effect of his answer will have a tendency to criminate himself.
    Habeas CORPUS and certiorari to inquire into the cause of the detention of the relator. »

      John B. Stanchfield and Frank M. Leary, for relator; J. H. Jennings, for deft.
   Smith, J.

Upon the 24th day of March, inst, I granted two writs, one of habeas corpus, the other of certiorari, to inquire into the cause of the detention of the relator by the defendant. The writs were returnable before me at Watkins upon the twenty-sixth day of March. Upon the said day the parties appeared, and were heard through counsel in reference thereto. In determining this case it is important to consider several questions :

First. To what right is the relator entitled under the writ of certiorari over and above his rights under the writ of habeas corpus ? Is the writ of certiorari more searching r Does it bring before the court for review any further papers or evidence or give the court any further right of determination than does the writ of habeas corpus ?

There has been in the books considerable confusion upon this question, but a careful study of the scheme of the Code renders plain, I think, the intention of the lawmakers.

By § 1991 of the Code of Civil Procedure, state writs are enumerated. Among them is the writ of habeas corpus to bring up a person to testify or answer ; the writ of habeas corpus, and the writ of certiorari, to inquire into the cause of detention; the writ of mandamus ; the writ of prohibition, and the writ of certiora,ri to review the determination of an inferior tribunal, which may be called a writ of review. It will thus be seen that the writ of certiorari to inquire into the cause of detention and the writ of certiorari to review the determination of an inferior tribunal are two separate and distinct writs. The latter writ, which I will call ' the writ of review, can be issued only by the court in general or special term; is directed to the inferior tribunal; the return is made to the clerk and the argument upon the return must be heard at general term. It is, as its name indicates, a writ of review, under which the determination arrived at may be reviewed by the general term, and the evidence before the tribunal may be examined to see if it authorizes the conclusions reached. The determination of Justice Forbes that a contempt has been committed might thus be brought before the general term for review, and the justice would be required to certify to the general term all of the facts upon which his determination was based. People ex rel. Choate v. Barrett, 56 Hun, 351; 30 St. Rep 728. The writ of certiorari to inquire into the cause of detention, however, is not in its nature essentially a writ of review. The writ is directed to the sheriff or person having the prisoner in custody. He is required to return to the judge issuing the writ by what right he holds the custody of the person detained. Under this requirement he returns simply the commitment. See Code, §§ 2005, 2022, 2026» He has not possession of the evidence upon which that commitment was granted. He cannot certify any such evidence, nor is he required so to do. Under § 2041 of the Code, if the offense is not bailable, upon an application for a writ of habeas corpus the court or judge may grant á writ of certiorari. Under the writ of habeas-corpus^ the body of the person must be produced. If the offense is bailable, the court may then accept bail. If the offense is not bailable, there is no necessity of the presence of the detained person upon the argument, and a writ of certiorari may be issued, which calls for precisely the same return from the custodian, but does not bring the body of the detained person. Under that writ, then, the same questions arise, the same facts appear for determination, and the same limitation rests upon the power of the court as upon the writ of habeas corpus. The relator has gained nothing by having two writs, one of habeas corpus, the other of certiorari. The questions here for determination are only those which might arise under either writ upon the return of the sheriff showing the mandate of the court under which he holds the relator.

Second. What rights has the relator upon his examination before the grand jury ? In Wharton on the Law of Evidence, § 533 it is said : “ A witness, such is one of the most cherished sanctions of the law, will not be compelled to answer any question the answer to which'would be a link in the chain of evidence bv which he could be convicted of a criminal offense.” The grand jury had under investigation the cause of a supposed crime, which resulted in the death of a woman in the city of Ithaca, caused by the generation of a deadly gas in jugs which had been provided for that purpose. It seems that this gas was generated and conducted to a room in which was being held a lawful meeting of the freshman class of the university, for the purpose of disturbing the said meeting. Such act would seem to constitute, under § 448 of the Penal Code, a misdemeanor.. Under § 189 of the Penal Code the killing of a human being while engaged in such an act would seem to constitute the crime of manslaughter in the first degree. These sections are referred to, not for the purpose of pointing out what crime was under investigation, but for the purpose of showing that some crime was charged. Under the circumstances surrounding the case the probabilties are that the crime was committed by some of the students of the university. This relator, then, a student of the university, was called upon and asked the following questions : “(1) Do you know where those jugs were purchased ? (2) Do you know who purchased those jugs that were in the room in the Masonic building the night of the freshman banquet on the night of February 20, 1894 ? (3) Do you know to whom those jugs were delivered after they were purchased ? (4) Do you know when those jugs were purchased ? ” These questions the relator refused to answer. Had he the right so to refuse ? In Wharton’s Law of Evidence, § 538, it is said : “A witness will be compelled to answer as to conditions which he shares with many others (e. g., whether he was in the neighborhood of a homicide on a particular day when such neighborhood includes a city), though not as to conditions which would bring the crime in a suspicious nearness to himself.” The questions call for personal knowledge. IE he answers of'his personal knowledge where the jugs were purchased, he must have been present at the place of their purchase. If he answers who purchased them, he must have been present and seen them purchased. If he answers to whom those jugs were delivered after they were purchased, he must have been in the company of parties who were directly connected with the crime. If he answers when those jugs were purchased, he must have been present at the time of their purchase. It is apparent, therefore, that any answer he might give to these questions would reveal such conditions as would bring the crime “in suspicious nearness to himself.” This fact would clearly tend to criminate him. If he answers that he himself purchased the jugs the inevitable tendency of the evidence would be either to charge himself with the commission of the crime, or of so aiding and abetting in its commission as to make himself a principal therein.

The district attorney, upon the argument, admitted that if these questions alone were asked the relator would have the right to assert his privilege, but he would take from the witness his privilege because of the answer to three other questions, as follows : “ Do you know what the contents of those jugs or either of them were .at the time of the purchase, or what was placed in them immediately after the purchase ? A. I do not. Q. Do you know the nature of the act which was intended to be perpetrated upon (he freshman class upon the night of their banquet ? A. No, sir, I do not. Q. Did you know for what object or purpose the jugs were purchased, either at the time of the purchase or prior to the freshman banquet on February 20,1894? A. No,sir; I do not.” It is claimed that he has by this evidence, shown that he himself was guiltless of the crime, and that, therefore, his claim of privilege is made, not to shield himself but to shield his friends. In other words, the syllogism reduced is : (1) The man who swears that he himself is innocent of a crime is not entitled to the benefit of this protection. (2) The relator Taylor has sworn to facts showing his innocence. (3) The conclusion follows that he is not entitled to this protection. The syllogism thus reduced is clearly erroneous in both its major and minor premise. IE the major premise is "true, then the protection which the law affords was designed for guilty parties and not for innocent parties. This construction I cannot accept. A man may be wholly innocent of crime and may assert his innocence, and still be entitled to the protection against revealing any fact which might tend to charge him with crime. Notwithstanding his assertion of innocence if he answers questions asked revealing the fact that lié purchased those jugs, a jury might well, with other circumstances, fasten the crime upon him. It is for the protection of innocent parties that this privilege is given by the law. The law knows no guilty parties before conviction. At every stage of the proceedings the law gives him the right to refuse to divulge any fact within his knowledge which might be used to charge him with crime.

But the minor premise is clearly at fault. Suppose Taylor himself had purchased those jugs for the purpose of causing some disturbance of this lawful meeting, he might well then be guilty as a principal in this crime without either knowing the contents of the jugs or the nature of the act that was intended to be perpetrated, or the exact object and purpose of the purchase. He has not, therefore, asserted, his innocence of this crime, nor any facts which would of necessity relieve him if he had been connected in any way with the purchase of those jugs. I conclude, therefore, that if he believed that the answers to the questions recited in the commitment would tend to criminate him, he had the right, as matter of law, upon testifying to such belief, to refuse to answer the said questions.

Third. Does the commitment, then, charge any criminal contempt? By this commitment I am bound as to facts recited therein. In People v. Hackley, 24 N. Y. 78, Judge Denio says: “ The question whether the alleged offender really committed the act charged will be conclusively determined by the order or judgment of the court.” The learned judge was then speaking of such review as was permitted upon a writ of habeas corpus. The commitment recites the questions asked of the relator, and then further recites: “And the said Frederick L. Taylor then and there, instead of answering the said interrogatories so put to him as aforesaid, stated and answered each of said interrogatories as follows, to wit, ‘I throw myself upon my privilege.’ And the court having then and there decided that each of said interrogatories was a legal and proper one, and that the reasons given by said Frederick L. Taylor for not answering the same are invalid and insufficient * * doth hereby adjudge the said Frederick L. Taylor guilty of a criminal contempt oh court.”

It is not enough for the witness to throw himself upon his privilege. The law gives him great license in allowing him to refuse to answer where he asserts, under oath, that the answer would tend to criminate him. If the court can see that any answer which ' he should give can reasonably produce such an effect it is bound to accept his oath without explanation as to how it can tend to criminate him. It is a necessary safeguard, therefore, against the abuse of this privilege that the,witness should make oath that in his opinion the effect of his answer would have a tendency to criminate him. He knows, and he alone, whether such would probably be the effect of his answer. In Youngs v. Youngs, 5 Redf. 518, Judge Rollins says : “ The foregoing cases abundantly establish that, by the English authorities, the bare oath of a witness that an answer may tend to criminate him is not deemed of itself conclusive, but that the judge is called upon -to exercide his discretion in determining, whenever the pifivilegs is asserted, whether an occasion has arisen for its rightful exercise. The witness in every case must pledge his oath as to his own view of the matter.” But authority seems hardly necessary for the proposition. The privilege which the law gives to these witnesses often materially obstructs the course of justice, and, as in the case at bar, baffles the attempts of the public prosecutors to ferret out the real criminals. The witness should not, therefore, b"e accorded this right of silence unless he make record, under oath, of his own opinion that the effect of his answer would tend to criminate him. Upon the commitment which the sheriff lias returned as his authority for the detention of the relator it does not appear that any such evidence has been given by the relator. The questions asked of the relator were legal and proper questions until the relator should claim his privilege and swear that their answers would tend' to criminate him. It, therefore, appears that the relator is detained for a criminal contempt specially and plainly charged in the commitment made by a court having authority to commit for contempt so charged, and under § 2032 of the Code must be rejnanded. It is claimed by the relator, however, that the minutes' of the evidence before the grand jury show that he did swear that such answers would tend to criminate him. But those minutes are not before me for my consideration. Nor, as far as appears, were they before the judge who committed for the contempt. The contempt for which he is now in prison is for not answering the questions put to him, or rather for making as his only answer, “ I throw myself on my privilege." IE he shall appear before the grand jury at its next meeting and there make answers to the questions which have been asked him, or make oath that the answer to such questions will tend to criminate him, he may then claim his privilege and will have purged himself of the contempt for which he now stands committed. Tjie prisoner is, therefore, remanded to the sheriff of Tompkins county under the commitment upon which he is now detained.

Ordered accordingly.


author: O’Brien, J.

text:
    John Crosby Brown et al., Pl’ffs, v. The United States and Brazil Mail Steamship Company et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April, 1894.)

    Receiver—Permanent—Transfer of fund.
    Where 'the fund of an insolvent corporation is on deposit ip a trust company to the credit of the action, and the court, for want of jurisdiction, is powerless to determine the respective rights of the parties to the fund, and, in the meantime, the plaintiffs are proceeding to enforce their claims in the Federal courts, and it does not clearly appear just who are parties to such action, the fund should be transferred to the permanent receiver of such corporation, without prejudice and subject to the rights of all persons who claim special liens upon the fund.
   O’Brien, J.

This is a motion by the permanent receiver of the defendant company for an order for delivery to him of certain moneys deposited with the Central Trust Company.

Brown Brothers & Company were creditors of the steamship company for the amount of certain drafts accepted and paid by them drawn on letters of credit issued. On receiving these letters of credit the steamship company delivered to Brown Brothers & Company an agreement to make good- the amount of any drafts drawn, and as collateral security for such payment pledged all freight moneys earned and to he earned.

The Atlantic Trust Company was trustee of a mortgage executed by the steamship company, which covered five ships, and, among other things, all contracts and property, and all tolls, income, profits, etc., arising out of such properties, and the right to collect and recover the same.

Certain bankers other than Brown Brothers & Company had also issued letters of credit to the steamship company and paid drafts thereunder, and claimed to. be entitled to a specific lien or claim upon the freight moneys earned by the company.

In February, 1893, this action was commenced by Brown Brothers & Company to enforce their pledge and to procure the appointment of a receiver of the freight moneys, some of which were already in the possession of the steamship company or its agents, and others of which were in process of being earned, the vessels being at sea and not having then arrived in the port of New York. The Atlantic Trust Company intervened as a defendant. asserting that its right was superior to that of the other claimants to the specific interest in these moneys.

Thereupon a stipulation was entered into, of which the following is a copy:

“ N. Y. SUPREME COURT.

“ John Crosby Brown and others v. United States & Brazil Mail Steamship Company.

“ The plaintiff, having applied for the appointment of a receiver for freight moneys received or to be received by the defendant, upon the allegations set forth in the complaint, and the Atlantic Trust Company, as trustee of the mortgage of the defendant dated July 1, 1889, having applied for leave to intervene as a party defendant, which application is not opposed by the other parties, claiming certain alleged equities in or liens upon said fund, upon the allegations contained in the petition for intervention, and the defendants stating that claims for certain equities in or liens upon said fund are also made by other persons making such claims and alleging that the same arise under or by reasonrof certain bankers’ credits issued to the defendant by certain bankers in the city of New York. “ And the defendant conceding that some or all of the parties and persons above named or referred to is or are entitled to the possession of said freight moneys whether or not already received by the defendant but that the said defendants unable to determine which of said several claimants is entitled to such moneys or any part thereof as against each other.

‘ Now,‘it is stipulated and agreed by and in behalf of all the parties hereto by their attorneys for the benefit of them and of all the persons above referred to, that there be forthwith deposited in the Central Trust Company, in the city of New York, to the credit of this action all the freight moneys now in possession of the- said defendant or its agents, Paul F. Gerhardt & Co., as well as all freight moneys hereafter to be received by the said defendant or its said agents,- or any person claiming under them or in their behalf, on account of the ships ‘Kate,’ Joshua Nicholson,’ ‘Seguranca,’ ‘ Elsie,’ ‘ Etherley,’ and any and all other ships owned, operated or chartered by said defendant; such moneys to be kept as a separate fund, by the said trust .company, subject to the further order of this court; either of the parties herein named or above referred to, upon intervention herein and upon notice to the other parties, being authorized to apply to the court for any such further order.

“ It is further agreed that either of the parties hereto may, without further notice, enter an order herein in accordance with the foregoing stipulation.

“ Dated New York, March 15, 1893.”

The order for the deposit of freighj; moneys which are the subject of this application, directs that: “ The defendant, the United States & Brazil Mail Steamship Company, forthwith deposit with the Central Trust Company of New York, to the credit of this action, • which trust company is hereby designated as depository for such purpose, all the freight moneys now in the possession of the defendant or its agents, Paul F. Gerhardt & Co., as well as all freight moneys hereafter to be received by the said defendant or its agents or,,any.other'person claiming under them or either of them or in their behalf, on account of the ships ‘ Kate,’ ‘ Joshua Nicholson,’ ‘ Seguranca,’ ‘ Elsie’ and ‘ Etherley,’ and any and all other ships owned, operated or chartered by the defendant, such moneys to be kept as a separate fund by the said trust company, subject to the further order of this court, and it is further ordered that either of the parties in said stipulation named or-therein referred to, upon intervention herein, upon notice to the other parties hereto, be and they are hereby authorized to apply to this court for any such further order.”

This order for the deposit of freight moneys was made on March 15, 1893, and three days after H. W. Gray was appointed temporary receiver of the steamship company in a judgment creditors’ action then pending in this court, and an order was subsequently made allowing such receiver to intervene, in this action, and such receiver thereafter did intervene and answered, taking issue with the plaintiff and claiming to be entitled to possession of and to administer the fund.

On March 6, 1894, the temporary receiver was made permanent receiver of the defendant corporation, and on the following day gave notice to all the parties of this application.

Although the bulk of the money now on deposit with the trust company under the stipulation was deposited prior to the appointment of the temporary receiver, it is conceded that a small portion of it was collected and deposited after such appointment.

If there were no facts other than those above stated, then though there might be much force in the suggestion that the moneys deposited subsequent to his appointment should be transferred to the receiver, still I think that, with respect to the moneys deposited prior to his appointment, they should be retained by the trust company under the terms of the stipulation to the credit of this action, wherein the rights of all the parties would be determined and the fund accordingly distributed. In addition, however, it is made to appear that, besides the freight moneys collected and deposited, certain other freight moneys were collected and retained by owners of several of the vessels chartered to the defendant company; and, for the purpose of reaching such moneys, an application was made to enjoin such owners from collecting the freight moneys, and to direct them to deposit the same to the credit of this action with the trust company. . This motion being in part granted and the order entered thereon, an appeal was taken to the general term of this court by the owner of the vessel chartered to the defendant company, and it was upon such appeal held that this, being an equitable action, brought in the first instance to enforce a maritime lien in favor of the plaintiff, and that as by the amendment to the complaint it is sought to adjudicate as to the existence of the maritime liens claimed by the appellant, and if found to exist to determine their amount, this court had no jurisdiction to entertain such an action, but that of such actions the Federal courts have exclusive jurisdiction. Upon appeal from the general term to the court of appeals, the latter court dismissed such appeal (N. Y. Law Jour., April 18, 1894).

Hot content with resting their rights upon this action, the plaintiffs brought actions in rern in the United States district court, in which several actions the Central Trust Company was served with process by the United States marshal.

The situation, therefore, is that a fund is on deposit in the trust company to the credit of this action, and for want of jurisdiction the court is powerless to determine the respective rights of the parties to the fund, and in the meantime the plaintiffs are proceeding to enforce their claims in the Federal courts, and just who are parties in those actions does not clearly appear.

The contention made that by depositing the steamship company divested itself of all right to the fund and turned it over to the possession of such persons as might establish a lien thereon-seems to me to be stating the position too strongly and too favor, ably to those claiming liens, the fact being that the defendant company, while admitting that these freight moneys were the subject of dispute between various claimants, whose rights it was unable to determine and was willing to submit to the court., depositing in the meantime such moneys to the credit of the action, it remained, by the terms of the stipulation a party to such action, with a view of seeing to it that the fund should not be paid out except upon an order or judgment of the court to those rightfully entitled thereto.

The receiver, for all practical purposes, is and takes the place of the corporation ; and whether the fund remains on deposit subject to the determination in some other action to be brought in the Federal court, or in the actions already brought by the plaintiff in such court, it is clear that the receiver should be present to protect the interests of all the parties in and to the fund. As said, if this action were maintainable and the rights of the parties could be determined herein, then my conclusion would be that, as the receiver was permitted to intervene, and after his appointment as permanent receiver would have obtained leave to file an additional answer, if that should be deemed necessary,( he could thus have protected the rights of all persons whom he represents and was appointed to protect without disturbing the .fund as deposited. As it now stands, however, the fund is in the trust company, and as the stipulation did not provide for the contingency which has happened, as'to what should result in the event that this action in which the rival claims were to be disposed of should not be maintainable, and as no possible injury can result to any person having or claiming to have a special lien upon the fund vby having it transferred to the receiver, and as, on the other hand, there might be some danger that in an action such as the plaintiffs here have brought in the Federal com t, to which all those claiming andnterest in the fund might not be parties, such fund might be paid out, through misapprehension or failure to have all the parties before the court, without a full consideration of persons who had an interest therein and were not before the court, it seems proper that provision should be made to prevent any such happening. My conclusion is, therefore, that the motion should,in part be granted, by directing the transfer of the fund to the credit of the receiver, but requiring him to retain'the same as a separate fund on deposit with trust company, subject to any rights that the parties may have acquired under their stipulation or other proceedings in the admiralty court, and without prejudice to and subject to the rights of all persons who claim special liens upon the fund. Then, in the event that such liens are established against the corporation, the fund will be in a position to respond ; or, in the event that the parties do not,obtain a disposition of the rival claims within a reasonable time, the receiver will be in a position, in the administration of the affairs of the corporation, to put the machinery in motion for a determination of such claims.

To the extent indicated, therefore, the motion should be granted.