text:
    The Wakefield Rattan Company, Resp’t, v. Shepard Tappan, Sheriff, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    1. Fbaudtjlent bepbesentation.
    A. as bookkeeper for the Isaac Keith Co., at the request of the manager of Dun’s Commercial Agency, made a statement in March, 1890, showing the firm’s net assets to be $39,500. In September, 1890, A. stated to them that there was no change in the affairs of the firm, and this statement was submitted to plaintiff February 8, 1891. About February 1, 1891, plaintiff’s traveling salesman called at the store of the Isaac Keith Co., and one of the partners told him that the business was prosperous, the concern doing a nice business, and everything was looking promising, and its financial condition was all right, and the salesman took an order for $600 worth of baby carriages and delivered the same. In March, 1891, two judgments were recovered against the company for money loaned, amounting to $9,200, and executions for the same with two chattel mortgages amounting to $5,500, which existed at the time the representations were made, were placed in the sheriff’s hands. In March, 1891, several individual judgments against the different members of the company were recovered, but the executions were not levied upon the property of the company. Upon the trial of an action to replevin the baby carriages, as having been obtained by fraudulent representation, Held, that there was no evidence that the Isaac Keith Company had any reason at the time of the purchase to believe the firm insolvent, and that the jury were not authorized to find that the purchase of the goods by the Keith Co. was procured by fraud. „
    2. Same.
    It was incumbent upon the plaintiff before it could repudiate the contract of sale, to show affirmatively facts and circumstances tending to prove that the representations made by the bookkeeper at the time he was inquired of by the mercantile agency and those made by William M. Hyland to the salesman at the time of ordering the goods of plaintiff, were to the knowledge of the persons making such representations false or fraudulent.
    3. Same—Evidence.
    ■ It was error to allow the statement of the mercantile agency, based upon the representations of the Keith Company’s bookkeeper, to be received in evidence, as there was no evidence of the authority of the bookkeeper to make such statement.
    Appeal from a judgment entered in favor of the plaintiff against the defendant on the verdict of a jury at the Rensselaer circuit, and from an order denying a motion for a now trial on the minutes.

      Ryan & Landon (James H. Ryan, of counsel), for app’lt; Frank S. Black, for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiff against the defendant to recover the possession of fifty-four (54) ■baby carriages and twenty-two (22) brakes, of the value of six hundred and thirty-two dollars and thirty-five cents. ($632.35.)

The case showed that the property was seized by and held under an execution issued out of the supreme court in favor of the National Bank of Troy, against the Isaac Keith Co., and the theory of the action was that the' Keith Co. had no title to the property sought to be recovered, by reason of an alleged fraud, ■claimed to have been perpetrated upon the plaintiff by the Keith •Co., in the purchase of such goods.

The case shows that the Keith Co. was a firm doing business in Troy, which succeeded to a business formerly carried on by Isaac Keith and consisted of a co-partnership composed of William M. Hyland and Phoebe Link, and at the time of the organization of this co-partnership one Prank Andros, who had been the bookkeeper of Isaac Keith, deceased, continued in that capacity in the employment of the Isaac Keith Co. Soon after the Isaac Keith Co. commenced carrying on business, this bookkeeper was called upon by one W. 0. Daboll, the manager of E. Gr. Dun Mercantile Agency, at Troy, and requested to make a statement of the financial condition of the firm at that time. Pursuant to that request, Andros informed the mercantile agent what the inventory of the firm disclosed, giving in gross the value of the different articles of merchandise, the cash on hand, bills receivable, and the total of such assets; also purporting to give bills payable, the book accounts constituting the liabilities of the firm and showing net assets of thirty-nine thousand, five hundred and twenty-seven dollars and four cents ($39,527.04).

This statement was forwarded to the Edward Eussell Co. Mercantile Agency, in Boston. The mercantile agency also in the .same communication gave what purported to be the financial standing and business character of the Isaac Keith Co., and the personal and financial character of the members of such firm. This statement was made on the 1st day of March, 1890.

The case also showed that on the 13th of September, 1890, one William A. Coffey, a reporter of the E. Gr. Dun Co., called on Andros, the bookkeeper of the firm, and received from him further statements in reference to the standing and responsibility of the Isaac Keith Co., which Coffey reported to the Boston Mercantile Association as follows:

September 14, 1890.
“ Mr. Prank Andros, manager, tells us to-dav that there has been no change in their affairs since statement last March. They seem to be doing their share of the business and believed to be holding their own. They are people who are well spoken of personally, pay their bills with average promptness, and are looked upon as being responsible for their engagements.”

The above statement and the said representations were submitted to Seaver, the cash and credit clerk and salesman of the plaintiff, about the 7th or 8th of February, 1891.

The ease shows that the house of Isaac Keith had for sometime Been in the habit of purchasing goods of the plaintiff. About the 1st of February, 1891, John Brockett, traveling salesman of the plaintiff, called at the store of the Isaac Keith Co. and had a talk with William M. Hyland, a member of the firm, in which the latter stated that they had had an unusually good holiday business, and that the business was prosperous and the concern was doing a nice business, and everything was looking promising and its financial condition was all right. Brockett, the agent of the plaintiff, made no examination or inquiries as to how much stock the firm had, and how much in accounts were due and owing to them.

The case discloses no other recommend or statement of the pecuniary standing or responsibility of the Isaac Keith Co., or of the individual members composing that company, prior to the time of making the order for the goods. At that time an order was .given by the firm and accepted by Brockett, in behalf of the plaintiff, for fifty-four (54) baby carriages, with a request that they should be forwarded right along. The order of this class of goods by the Isaac Keith Co. previous years was from fifty (50) to four hundred dollars ($400) a year. The order on this occasion was for about six hundred dollars ($600) worth of goods. The goods were delivered and received pursuant to the order and placed in stock in the Isaac Keith Co.’s store.

The testimony of Frank Andros shows that at the time of making the report to the E. Gr. Dun Mercantile Agency, the same was a correct statement and inventory of the assets of the Isaac Keith Co.; according to his best judgment, deducting $10,000 as a liberal shrinkage on the book account for doubtful debts.

On the 20tli of March, 1891, the Central National Bank of Troy recovered a judgment against the Isaac Keith Co. for $6,170.93 upon a note of $6,000 given by that company on the 21st of October, 1890, for money loaned. On the 23rd day of March, 1891, Elizabeth Hyland recovered a judgment against the Isaac Keith Co. for $3,078.91, being upon a demand note of $3,000 given by that company for borrowed money.

These two judgments constituted the only judgments recovered against the Isaac Keith Co. which appears from the evidence. On the 23rd of March, 1891, Harriet L. Keith recovered a judgment against William M. Hyland, one of the firm of the Isaac Keith Co., for $5,016.51. This judgment appears to have been recovered on five promissory notes of $1,000 each, made by William M. Hyland to Harriet L. Keith, dated February 3, 1890. On the 23rd of March, 1891, judgment was entered in favor of Haywood Brothers against William M. Hyland and Phoebe Link, individually, for $593,95. On the 23rd of March, 1891, a judgment was entered in favor of Bichard Cunningham and entered against Phoebe Link and William M. Hyland for $1,542.01. This judgment was upon a note made by Phoebe Link and indorsed by William M. Hyland, dated December 9, 1890. An execution had been issued on the individual judgments against Harriet L. Keith and William M. Hyland, which was not, however, levied upon the property of the Isaac Keith Co., but was directed to be satisfied out of the personal property of said judgment debtors, or either of them, and did not contain a direction to levy against the property of the Isaac-Keith Co.

The evidence shows that the defendant, as sheriff, received and held an execution on the judgment in favor of the Central National Bank, under which he seized and held the property of' the Isaac Keith Co., and while so holding the same a mortgage against the Isaac Keith Co. in favor of H. B. Claflin & Co. for $4,000 and one for Peter McCarthy of $1,500 against the-Isaac Keith Co. were also placed on his hands for collection.

It does not appear from the case that an execution from the Elizabeth Hyland judgment against the property of the Isaac Keith Co. had been issued to the defendant at the time of the commencement of the plaintiff’s action to replevin the baby carriages.

The total liabilities, as appears from the evidence, which were being enforced against the property of the Isaac Keith Co., at the time plaintiff commenced this action, was for the $6,190.93 on the bank judgment, and $5,500 on the two chattel mortgages above referred to, and the aggregate assets, as appears from the evidence, including the book of accounts of the Isaac Keith Co., amounted to $47,000.

Assuming, therefore, that the representations made by the Isaac Keith Co.’s bookkeeper could be held as representations made by the company, and that the statement made by William M. Hyland to - the plaintiff’s sales agent, Brocket!, could be treáted as representations of the Isaac Keith Co. of their solvency and responsibility, it is difficult to see how such representations per se can be regarded as fraudulent as to the financial ability of the Isaac Keith Ob. Confessedly upon this showing the company was-at that time solvent. It is true that it owed debts, but its apparent assets were far in excess of-its liabilities. No actions had been commenced against it at the time of its purchase of these goods, and no judgments had been perfected against it at that time. The two mortgages alone, which were capable of being summarily enforced, seem to constitute the only liability against which the Isaac Keith Co. could be compelled to provide at once.

The sale of these baby carriages from the plaintiff to the Isaac Keith Co. seems to have been absolute and complete, and the title to these carriages vested in that company, unless at the time of the sale the company practiced such a fraud upon the plaintiff as-to render the contract of the sale, and the delivery under it, void.

Before the plaintiff can recover the possession of the property sold under such circumstances, it must establish five distinct propositions tending to defeat the contract:

First. The representations.

Second. Their falsity.

Third. The scienter, or guilty knowledge of the person making the representations.

Fourth. That the purchaser reneu upon and was deceived by the representations.

Fifth. The damages resulting to him in consequence thereof.

In Arthur v. Griswold, 55 N. Y., 410, Church, Chief justice, in discussing the question of fraudulent representations in the sale of stocks, where the validity of the sale was challenged on the ground of fraud or of fraudulent representations by the vendor as to the solvency of the corporation, uses this language: “Such an action cannot be sustained upon misplaced confidence induced by vague surmises. The rule of law requires a reasonable degree of certainty as to each requisite necessary to constitute the cause of action, viz.: representation, falsity, scienter, deception and injury.”

And this language was reiterated by Andrews, J., in Brackett v, Griswold, 112 N. Y., 467; 21 St. Rep. 791.

And the learned judge adds: “There must have been false representation, known to be such, made by the defendant, calculated to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to the recovery.”

In Nichols v. Pinner and Michael, 18 N. Y., 295, it was held that mere omission of the purchaser of the goods to disclose his insolvency to the vendor is not a fraud for which the sale may be avoided.

That was an action like this, to recover the possession of personal property sold by the plaintiff to the defendant upon the allegation that the defendant purchased the same fraudulently and with a design not to pay for them. The complaint was for a wrongful detention of the property.

Pratt, J., in delivering the opinion of the court, said: “ To constitute a fraud in such a case there must be an intention to cheat, at least there must be an intention to do an act, the necessary result of which will be to cheat and defraud another, but it is clear that such intention is not necessarily inferable from the fact that a man in good credit, going on with his regular business, makes his usual purchases for the purpose of continuing that business after he is made aware that his property is not sufficient to pay his debts; it is not fraudulent in him to make reasonable effort to retrieve his fortune or to extricate himself from his embarrassment. It is not unnatural that he should cling to the hope that better times would come, that to-morrow should be as this day and much more abundant; and that with this hope, however delusive results may have shown it to be, he should have been impelled to buy more goods, contract new debts, and struggle on until some casualty should precipitate the catastrophe upon him and he find himself hopelessly bankrupt. This is an every day experience in the commercial world, and it would be hard indeed, if the unfortunate victim of hopes that looked to him at the time as reasonable must, in his misfortunes, be judged by the actual, instead of the possible results. The authorities do not sustain any such doctrine, but the reverse.”

And the learned judge in this case, in further discussing the question, uses this language: “ Fraud must be proved affirmatively. The presumption is always in favor of innocence, and not of guilt. The evidence should therefore be direct and strong which would authorize the repudiation of a contract upon the .ground of fraud, especially in executed contracts of sale where the goods have been delivered and become mingled with the .mass of the purchaser’s other property.”

The cases just cited proceed upon the theory that the pur■chaser knew or had reason to believe himself insolvent at the time of making the purchase. There is no evidence in this case that the Isaac Keith Co. or the members of that firm had any reason to suppose that firm insolvent. The evidence, so far as it discloses the apparent condition of the firm, shows net assets above .any liabilities which are disclosed by the evidence upon the inventory or estimate made by Andros toDaboll to amount to $39,524. These were firm assets and primarily liable for the firm debts, and which must be applied to the firm debts before any can be applied upon the individual debts of the individual members of the firm.

It is difficult upon this showing to see how the members of the firm could have known, or even suspected, that the firm was insolvent and unable to pay its liabilities at the time of purchasing these baby carriages. It was incumbent on the plaintiff, before it could repudiate the contract of sale, to show affirmatively facts and circumstances tending to prove that the representations made by the bookkeeper, at the time he was inquired of by the mercantile agency, and the representation of William M. Hyland, at the time of ordering the goods of plaintiff’s sales clerk, were, to the knowledge of the persons making such representation, false or fraudulent. The facts disclosed by the evidence would tend rather to prove them innocent than guilty of any such false representation. The evidence, therefore, capable of an innocent interpretation, cannot be used to establish guilt. Morris et al. v. Talcott, 96 N. Y., 100; Constant v. University of Rochester, 133 id., 640 ; 45 St. Rep., 252; Fenno v. Hannan, 32 St. Rep., 760.

To sustain an action for fraud founded upon representations made by purchaser, it must be made to appear that he believed, or had reason to believe, at the time he made them that they were false, or that without knowledge he assumed or intended to convey the impression that he had actual knowledge of their truth when he had no such knowledge, and that the plaintiff relied upon them to his injury. Wakeman v. Dalley, 51 N. Y., 27; Meyer v. Amidon, 45 id.; 169; Oberlander v. Spiess, id., 175.

The setting aside of a sale of a chattel which has been delivered on the ground of fraudulent representation by the vendee, the fraud must be clearly proved; and while fraud may be established by circumstantial evidence, it can only be by proof of such circumstances as are irreconcilable with any other theory than that of the guilt of the person accused of the fraud. Baira v. Mayor, etc., of the City of New York, 96 N. Y., 567.

Within this rule we think the jury were not authorized, fronq the evidence in this case, to find that the purchase of these goods by the Keith Company was procured by fraud. There is no dh rect evidence which we have been able to find which would uphold the finding of the jury, that Hyland at the time of ordering these goods knew or had reason to believe that any representation or statement made by him as to the financial condition of the firm was untrue. As we have seen, the stock on hand and the amount of book account due the firm were far in excess of the liabilities of the firm, and those liabilities were a first charge upon the entire firm assets before any of the firm property could be applied upon the individual liabilities of the individual members of the firm; and there is nothing in the transaction, so far as the evidence discloses, from which the jury could properly infer that Hyland purchased these carriages with a fraudulent design of appropriating their value and not paying the plaintiff the pride at which they were purchased; but if there was enough in this case to authorize the jury to find the representations made by Keith Company’s bookkeeper were exaggerations of the financial condition of Keith Company, the evidence discloses no fact.tending to" establish tire bookkeeper’s authority to make any such declaration or to bind the firm by it. The case expressly shows that the representations made by the bookkeeper to the mercantile agency were not communicated to the Keith Company or either member of that firm, and that the bookkeeper had no express authority from the firm to make representations as to its financial standing which would bind the firm, and his representations to the mercantile agency would not amount to such fraudulent representations by the firm as would authorize the plaintiff to treat the sale by them of these carriages to the Keith Company and the purchase of the same by said company as fraudulent and void.

The question of fraud must therefore turn upon the statement made by Hyland at the time of making the order. That statement was that “the company had had an unusually good holiday business, was prosperous, and was doing a nice business, and everything was looking promising, and its financial condition was all right.”

Under the circumstances of this case, and within the authority, we do not think that that statement can be construed as fraudulent, so as to vitiate the sale, and it was therefore error to allow the jury to speculate upon that statement in the absence of any evidence showing that Hyland knew at the time of making the same that it was untrue.

We think it was also error to allow the statement of the mercantile agency, based upon the representations of the Keith company’s bookkeeper, to be received in evidence. There was no evidence of authority in the bookkeeper to make statements to the mercantile agency of the Keith company’s financial standing, nor was there any evidence that the Keith company knew that their bookkeeper had made such statements at the time of ordering the goods, and the acceptance of the goods by the Keith company in the absence of such knowledge was not a ratification of the statement of the bookkeeper. Bigelow on Frauds, 363.

In this case the plaintiff, having asserted the authority of the bookkeeper to make this statement, assumed the burden of proving affirmatively the existence of such authority. This we think it failed to do, and for that reason the declarations of the bookkeeper were not competent to bind the principal, and their reception under the defendant’s objection was error.

For these reasons, without discussing the other questions raised by the appellant, we think this judgment should be reversed.

Judgment reversed, new trial ordered, costs to abide the event.

Putnam, J., concurs in result.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    In the Matter of the Guardianship of Benjamin F. Sherman.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Surrogate's court—Guardian of infant.
    The question whether an infant and guardian are or are not residents of the county is one to be determined by the surrogate to whom the application for the appointment of a guardian is made, and where, upon conflicting evidence, the question of fact is determined by the surrogate in favor of the guardian and there was some evidence to uphold such determination, this court will not reverse the decision of the surrogate on that ground.
    Appeal from an order of the surrogate of Saratoga county, denying an application made on the petition of Susan A. Sherman for an order revoking and setting aside letters of guardianship issued by the surrogate of Saratoga county to Jesse O. Conde, as guardian of the person and estate of Benjamin F. Sherman, an ■infant.
    The petition alleges that she is the maternal grandmother of Benjamin F. Sherman, an infant of the age of about ten years; alleges the death of the father and mother of the infant; the appointment of. Jesse O. .Conde as his guardian; charges that the appointment was made without notice to other relatives of the in fant, and that at the time of the appointment the infant and his guardian were not residents of Saratoga county, but residents of the city of Boston ; alleges that the infant’s property consists of an annuity of about one thousand dollars ($1,000) created under the will of its father to hold in trust by a trustee appointed under said will.
    The petition was presented to the surrogate of Saratoga county about the 20th of May, 1892. On that petition the surrogate issued a citation directed to Jesse O. Conde as general guardian requiring him to show cause why the letters should not be vacated. On the return of that citation the guardian appeared and answered, denying each and every allegation of the petition, except the allegation relating to his appointment and the allegation of the relationship of the persons therein stated to the infant. Accompanying said petition were various affidavits bearing upon the question of residence of the infant and his guardian, which were used by and before the surrogate in defense by the guardian in opposition to the motion of the petitioner. The surrogate also, on the application of the petitioner, admitted on her behalf affidavits in support of her petition. The affidavits and petition on the part of the guardian tended to prove that the guardian at the time of the death of the mother of the infant resided at Ballston Spa, in the county of Saratoga, and that he continued to reside there up to the time of his appointment, and that he was a resident of Sara-toga county, and from the time of the death of the mother of the infant the infant had resided with him, or upon support of him, at the guardian’s own personal expense. And also that the infant had an interest in real estate situate in Saratoga county.
    The affidavits also sought to explain the charge that he was a resident of the city of Boston by showing that he was a traveling agent for a business house in Boston, and but temporarily residing there, and that his residence was at Saratoga, and that the infant resided with him, and therefore was a resident of Saratoga ■at the time of his appointment as guardian.
    This allegation of fact appearing by the affidavit was challenged .and sought to be overturned by several affidavits used by the petitioner on this motion.
    It also appeared by the affidavits of the guardian that lie was the maternal uncle of the infant. There was some controversy before the surrogate over the fitness of the petitioner, and also of the guardian, to act as guardian for the infant.
    The proof shows that the infant was strongly attached to the present guardian and seemed to entertain a dislike for the petitioner, his grandmother; that the infant was tenderly and properly cared for by the guardian, who was of abundant means, and that the petitioner was without means, residing with her son.
    On these proofs the surrogate made an order denying the motion to vacate and set aside the letters of guardianship.

      W. D. Veeder and John L. Henning, for app'lt; J. S. L'Amoreaux, for resp’t.
   Mayham, P. J.

It is insisted on the part of the petitioner that the order of the surrogate appointing Jesse 0. Conde guardian should be set aside on the ground that, at the time of the making -of the order appointing said guardian, he was ineligible on account of his residence, and that the surrogate had no jurisdiction of the infant upon the same ground.

Section 2822 of the Code of Civil Procedure gives the surrogate of the county in which an infant resides, or if he do not reside in the state, of the county in which his property, real or personal, may be in the state, jurisdiction to appoint a general guardian for the infant.

The question whether the infant and guardian were or were not residents of the county of Saratoga was one to be determined by the surrogate to whom the application for the appointment of guardian was made. It was a question of fact under the conflicting evidence in the case whether the proposed Jesse 0. Conde was a resident of the county of Saratoga, or the commonwealth of Massachusetts.

The question of fact was determined oy the surrogate in favor of the guardian, and there being some evidence before the surrogate to uphold that determination, this court on appeal should not reverse the decision of the surrogate on that ground.

While it is true that the assertion of. jurisdiction by the surrogate in himself would not confer jurisdiction, yet when acting upon conflicting evidence he is required to settle the conflict, and if in doing so his determination is supported by any evidence, it must be sustained.

Assuming, therefore, that the surrogate had jurisdiction to issue the letters of guardianship to Jesse O. Conde, there is no reason shown on this application for his removal. The whole evidence tends to show that he is a proper man to exercise the trust, and that he is exercising the same prudently and humanely and for the best interest of his ward. We see no treason for reversing the decision and order of the surrogate from which this appeal is-taken, and the order must be affirmed, with costs.

Order affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concur.


text:
    Helen A. Silliman, App’lt, v. John W. Paine et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Advebse possession.
    Where, in an action of ejectment, the proof fails to show that the premises claimed are embraced within the description in plaintifi’s deed, but there was evidence from which the jury might have found that the premises were held by plaintiff and her grantors adversely for more than fifty years before the erection of a structure on defendant’s lot in 1864, provided they found that the same was so enclosed and occupied as to create an adverse possession, the question should be submitted to the jury and it is-error for the court to dismiss plaintiff’s complaint.
    Appeal from a judgment in favor of defendants entered upon an order of the trial judge upon the second trial of an action of ejectment for a strip of land four and one-half inches wide and twenty-eight feet long. The parties owned adjoining lots situate on the westerly side of Congress street in. the city of Troy,, bounded in front by that street and in the rear by an alley. In 1864, on the rear of each lot stood a barn, one by the side of theotlier, with a space of about one foot between them. Yail, then the owner and now the grantor of the lot of the defendants, tore down the barn on his lot and erected a new one, leaving only five and one-half inches between his new bam and plaintiff’s old barn. The action was to recover the portion of the space covered by the new barn.

      Lansing & Cantwell (James Lansing, of counsel), for app’lt;. Irving Hayner (John H. Peck, of counsel), for resp’ts.
   Mayham, P. J.

Appeal from a judgment entered upon an order of the trial judge dismissing plaintiff’s complaint at the-trial.

This action has been once before tried before a referee who reported in favor of the defendants, and on appeal from the-judgment entered upon that report the judgment was affirmed by this court in a well considered opinion by Justice Landon, reported in 16 St. Rep., 324.

That decision has not been reversed, and unless the essential facts have been changed on this trial so as to lead to a different result must, we think, be regarded as stare decisis in this case.

It is true, as the plaintiff saw fit to avail herself of the provisions of the statute providing for a new trial in actions of ejectment on payment of costs, that she is entitled to a new trial de novo, and to have her case disposed of substantially as if no trial had been previously had; but if on such new trial the facts have not been substantially changed this court should not disregard the light reflected upon the case by the examinations and adjudications of the court on the former trial.

We have examined the evidence on this trial, and do not sec that it is essentially changed as to the location of the land actually embraced in the plaintiffs deed.

Upon that question there seems now, as on the former trial, a want of evidence fixing any definite starting point from which a survey can be made with sufficient certainty to locate this dividing line with accuracy within the narrow margin of six and one-half inches. Assuming, as we must, that the former decision on that question was correct, we see no change of facts which would change the legal conclusion reached on the former trial.

But it is insisted by the learned counsel for the appellant that the proof on the second trial clearly establishes in the plaintiff a twenty years adverse possession of this strip of land, and that, therefore, the plaintiff is entitled to recover even though the proof fails to show that it is embraced within the description in the plaintiff’s deed, or covered by the allegations of his complaint.

The plaintiff makes no claim in her complaint for land not embraced in lot No. 123, and seeks only to recover a part of that lot bounded on the north line of that lot.

That claim is, therefore, inconsistent with a claim to recover lands lying northerly of that line.

But the complaint does specifically describe the piece of land sought to be recovered by boundaries from which, if the plaintiff should recover, the locus in qiio could be taken possession of by the sheriff, and the plaintiff put in possession. It is a strip six and one half inches wide from front to rear, parallel with the north line of the lot, and extending twenty-eight feet from Second street to the alley.

If, therefore, the proof in this case establishes an adverse possession in the plaintiff in this strip, within the provisions of §§ 370, 371 and 372 of the Code, we think under this complaint she might recover.

Upon this branch of the case there was evidence from which the jury might have found that these premises were held by plaintiff and her grantors adversely for more than fifty years before the new barn was constructed on defendant's lot in 1864, provided they found that the same was so inclosed and occupied as to create an adverse possession, within the provisions of §§ 370,. 371 and 372 of the Code of Civil Procedure.

I think that within the case of Barnes v. 116 N. Y., 34; 26 St. Rep., 654, the case upon this branch should have been sub- . mi tied to the jury.

In that case it was held that an action of ejectment can be maintained upon an adverse possession, even against the true owner, .and several authorities are referred to to sustain that position.

As the plaintiff did not succeed in affirmatively proving that her deed covered this land, and her claim of title was not, therefore, founded upon a written instrument, it was incumbent on her to show an actual, continued occupation under a claim of title for more than twenty years in herself or her grantor, evidenced by a continued substantial inclosure. Code Civil Procedure, §§ 370, 371 and 372, supra.

Upon this question there was evidence which we think raised a question of fact which should have been submitted to the jury.

Judgment reversed and a new trial ordered, costs to abide the • event.

Putnam and Hebbick, JJ., concur.


author: Van Wyck, J.

text:
    Charles Klebisch, Resp’t, v. Charles Siedler, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1893.)

    1. Counterclaim.
    In an action for work, labor and material furnished in completing a house owned by defendant, and for professional services as attorney performed for him, the defendant alleged that such sum was paid by plaintiff for his own use while in possession of the house under a contract for its purchase, and set up counterclaims for double charges made in a bill for services rendered to defendant as receiver, and for moneys paid to plaintiff for services to be rendered in the future. Plaintiff replied, alleging that he had allowed the amount of such double charges in a bill subsequently rendered, and denying the payment alleged. The evidence was conflicting on all these points. Held, that the questions were properly left to the jury, and their verdict for plaintiff for the amount claimed was not against the weight of evidence.

      2. Same—Burden of proof.
    As to the counterclaim for moneys paid for future services, the burden was upon defendant to show that such sum was paid, and that plaintiff did not thereafter render services to him which were reasonably worth that sum.
    Appeal by defendant from judgment entered against him on verdict of jury and from order denying new trial.

      Henry Wilde, for resp’t; Tillotson & Kent, for app’lt.
   Van Wyck, J.

The plaintiff sues upon two causes of action. The first is that he paid out for the defendant, and at his request, the sum of $1,262.50, for certain work done and materials furnished in the completion of a house owned by defendant; has been paid on account the sum of $387.26, and that the balance of .$875.24 is still due him. The defendant disputes liability for the same, contending that such sum was paid out by plaintiff to his own use while in possession of the house under a contract of purchase from defendant, and which plaintiff unjustifiably refused to perform. This disputed question was properly left for the jury to determine upon conflicting evidence. The jury, by returning a verdict for plaintiff-of $1,148.54, found with plaintiff’s contention as to his first cause and also as to his second cause of action, which was for the recovery of $335 for professional services rendered by him. to defendant in and about the purchase and sale of the same house. Now, as regards defendant’s alleged first and ■second counterclaims. His contention under the first was, that this plaintiff as a lawyer rendered services to him as the receiver of a certain corporation, and presented to him, as such receiver, a bill for his, plaintiff’s, services and disbursements for the sum of $2,723.59, and that he, as such receiver, paid the same in full to plaintiff; that in said bill he was charged twice with each of the items of disbursements oE $35.60 and $102.30, and that plaintiff’s •charges therein for services were grossly in excess of the reasonable value oE such services, and that plaintiff should account for ■a certain $250, the amount of his bid at the sale of a certain house.

The value of such services became a disputed question under the evidence, and was left to the jury. The plaintiff conceded that the two items of disbursements had been doubly charged in the bill by mistake, but testified that after discovery of the mistake he had made and delivered to defendant, as such receiver, another account of credits and charges, which showed a large balance due him for services rendered to and disbursements made for such receiver by him, other than those mentioned in the bill of $2,723.59, and that in such other account he had credited defendant with these two items of $35.60 and $102.30, together with the item of $78.22, which had also been doubly charged in the first bill as claimed in defendant’s second counterclaim. These three items aggregate $216.12, and this second account is plaintiff’s exhibit “ M,’’ in which appears this credit to defendant as follows: “Less allowance by mistake $216.30.’’ Defendant admits at folio 285 that tins account correcting the double charges was received. The jury were instructed that they had the right to say whether or not these three items were credited and allowed on such account, and whether or not the plaintiff should be charged with the bid of $250. The defendant’s second counterclaim was for the $78.22 item doubly charged, and which has already been considered, and was also to recover the sum of $697.58, which defendant contended he had paid to plaintiff in July, 1891, for services to be thereafter rendered by plaintiff to him as such receiver, and all this was denied by plaintiff in his reply to the alleged counterclaim. The burden was upon the defendant to prove that such sum was so paid by plaintiff, and that plaintiff had not thereafter performed .services for him, as such receiver, which were reasonably worth such sum. One oE the main questions which was disputed in the case was whether this sum of $697.58, with others aggregating $4,115.57, was ever paid by defendant to plaintiff. The defendant contending that plaintiff agreed to buy from him the equity of a house for $4,115.57, and that the sum of $697.58 was a part of the purchase price thereof, while plaintiff contended to the contrary. This question was properly submitted to the jury. • The verdict for plaintiff for $1,143.54 is not against the weight of eviclence, and should not be disturbed. Judgment and order appealed from affirmed, with costs.

MoGtown and Eitzsimons, JJ., concur.


text:
    Henry E. Walton, App’lt, v. Margaret Mather, Resp’t.

      (City Court of New York, General Term,

      Filed June 28, 1893.)

    Contract—Employment as stage -manager.
    In an action for the wrongful discharge of plaintiff as stage manager off defendant’s company, the proof showed that one W. was the manager of the company; that defendant so told plaintiff; that W. executed a memorandum stating that he ha! employed plaintiff for the season of lb90-l, at. a salary of seventy-five dollars a week, subject to the conditions and regulations of a contract which was to be substituted for it; that thereafter W.
    • introduced plaintiff to defendant as the stage manager, who agreed that he. should have full charge, and he posted notices for rehearsals signed by himself as such and continued to act and was paid until December, when he was discharged. Held, that it was not necessary that such conditions, and regulations should he in writing, hut they could be waived or agreed upon by the parties orally; that there was sufficient proof of an employment and its terms, and that a non-suit was improperly granted.
    Appeal by plaintiff from judgment of non-suit.

      Nathan Lewis and S. G. Adams, for app’lt; Dittenhoefer & Gerber, for resp’t.
   Van Wyck, J.

At the close of plaintiff’s case at trial he was non-suited on the grounds that the parties never came to a complete final contract, and that D. 0. Willoughby had no authority to act for Miss Mather, the defendant. The plaintiff testified that “ Mr. Willoughby, in 1890 and 1891, was the financial and personal representative and manager of the defendant, and I know that, by Miss Mather telling me so,” and that “ Miss Mather told me a dozen times', twenty .times, that Mr.'Willoughby was the manager of her company.” The proof in this regard was sufficient to carry the question of Mr. Willoughby’s authority to the jury. How as to whether the parties ever came to a complete final contract. The plaintiff had marked in evidence the following: This memorandum certifies that I have engaged

this 12th day of June, 1890, Mr. Henry E. Walton, for the-Margaret Mather Dramatic Co., season 1890-1, at a salary of seventy-five (75) dollars per week, subject to the condition's and regulations of a contract which is to be substituted for th& memorandum. .

(Signed) D. C. Willoughby, Henry E. Walton.”

Although this memorandum names the term of employment,' rate of compensation and general nature of the business, yet it is not a contract because it is subject to conditions and regulations to be thereafter agreed upon by the parties; hence the minds of the parties had not yet met. And if plaintiff’s cause had rested solely on this memorandum, the non-suit would have been justified by the rulings in the leading case upon this subject of Chinnock v. The Marchioness of Ely, 12 L. T., N. S. 251, and in Mayer v. McCreery, 119 N. Y., 434; 29 St. Rep. 690. However, it must be remembered that in both of those cases the contracts were required to be in writing by the statute of frauds, while there is nothing in the memorandum here which requires the conditions and regulations to be agreed upon to be in writing, nor does it come within the provisions of the statute of frauds. Hence those conditions and regulations could be waived or agreed upon by the parties orally; and this plaintiff contends by evidence that all conditions and regulations were waived by Miss Mather, except as to the nature of the services to be performed by him, to wit, as stage manager of her company; while she contends in her answer “ that one of the conditions of the employment of the plaintiff was that his engagement and employment could terminate by either party giving to the other two weeks previous notice of their intention to terminate. It is true that by the answer she denied making any contract at all, but, as already shown, plaintiff’s proof of Mr. Willoughby’s authority to act for her was sufficient to carry that question to the jury, and as to her own participation in the making of the contract the plaintiff testified: “ I had the first conversation with Miss Mather in regard to this contract in August, at the Victoria ” and that “ after that paper of June 12, 1890, was signed I saw Miss Mather in August at the Victoria hotel; that was the first time I had seen her, except on the stage; personally to know her. Mr. Willoughby was present and with me at the time; Mr. Willoughby introduced me to her; I said I had had the pleasure of seeing her before, but not personally to be •acquainted with her. He said: ‘This is the stage manager.’

“Mr. Willoughby said this is the stage manager. She asked me various things about the people; did I know any of them ? I said 1 knew some of them, and then we had a further conversation, which was to this intent: I said: ‘You will understand before I commence with you, Miss Mather, that I have the entire sole control of the stage ; not to be a manager in name, to ring up the curtain ; but I must be responsible for everything; I must be the stage director, not alone in name, but in act’ She agreed with me perfectly. That was thereupon settled and we arranged for a call of the whole company ; she told me when to call them; I mean by that, that the stage manager puts up a notice stating that there will be a rehearsal at such and such a time on such and such a date for everybody, and in pursuance of that arrangement I called the company. I did ; I signed it with my own name as stage manager for Margaret Mather, and the company met. And .after that I went on and continued to render services as stage manager of the company every day up to the opening night, which was, I think, September 8th; and after that I continued every day up to December ; from the time of the opening of the season in September until Hecember the company visited many places, and performed in different places. In December we were performing at the Fifth Avenue Theatre. I was paid up to December regularly. Mr. Willoughby paid me at the beginning,” and that he was discharged without cause on December 8, 1890.

The plaintiff should not have been nonsuited, for his proof shows that Miss Mather employed him as the stage manager of her dramatic company ; that the term of his employment was for her season of 1890-1, which commenced in August, 1890, and ended in May, 1891, and that the rate of his compensation was-fixed at seventy-five dollars per week ; that he entered upon the performance of such employment in August, 1890, and continued the same to December 8, 1890, for which he was paid seventy-five dollars per week by her manager; that he was then discharged without cause, and that he is entitled to recover seventy-five dollars for each of about twenty weeks remaining of the term of his employment.

Judgment reversed and hew trial granted, with costs to appellant, to abide the event.

Fitzsimons, J., concurs.


author: Parker, J.

text:
    The People ex rel. William D. Martin v. Hermon Symonds et al.

      (Supreme Court, Special Term, Ulster County,

      Filed June 1, 1893.)

    1. Excise—Laws 1893, chap. 481—Beview of previous action of board of excise.
    As the right of an applicant for a license to have his application considered by the hoard of excise was given by the act of 1892, a refusal by the board to grant such license may be reviewed by certiorari under the act of 1893, although such determination was had prior to the time the latter act took effect.
    3. Same—Election of commissioners opposed to licensing.
    The hoard of excise is not justified in refusing to grant a license, without considering the merits of the application, on the ground that a majority of the hoard were nominated and elected by persons opposed to granting licenses. Their action being based on a misapprehension as to the existence of a law preventing them from considering and determining whether licenses, should be granted, was a legal error.
    3. Same—Local prohibition.
    Even if § 41 of chap. 401, Laws 1893, authorizes a majority of voters to-vote in favor of local prohibition, and until such vote Is reversed no licenses can he granted, the election of commissioners who agree not to-grant licenses is not equivalent to a vote for local prohibition.
    Certiorari to review action of the board of excise of the town, of Shandaken.

      Brinnier & Newcomb, for relator; R. Bernard, for resp’ts.
   Parker, J.

This is a proceeding by certiorari to review the action of the respondents as excise commissioners of the town of Shandaken, in refusing to grant the application of the relator' for a hotel license.

The proceedings are instituted under chapter 481 of the Laws of 1893,which amends § 24 of chapter 401 of the Laws of 1892., That section authorizes a certiorari to review the action of the board of excise in denying an application for a license in cities of over-30,000 inhabitants. Chapter 481, Laws of 1893, so amends § 24-as to authorize a review of a denial of an application 'for a license in any of the cities or towns of the state.

This act, which was approved by the governor on the 29th day of April, 1893, does not provide when it shall take effect. Therefore, under §' 43, article 2, chapter 8, of general laws, it. took effect twenty days after its approval by the governor, or on the-19th day of May, 1893.

The proceedings were instituted on the 20th of May, and, therefore, subsequent to the date whereon the statute took effect.

The right of the relator to have his application for a license considered by the board of excise was provided by the statute of 1892, and was therefore in effect on the 1st day of Majq 1898, when the board of excise of the town of Shandaken met and refused to grant the license asked for. That which the legislature undertook to do by chapter 481 of the Laws of 1893 was to provide a remedy by which the determination of the board of excise in certain cases should be reviewed. It is within the province of legislative authority to provide a remedy which shall operate on a right previously existing.

By § 2125 of the Code of Civil Procedure proceedings by certiorari may be instituted at any time within four months after the right accrues. The preliminary objection, therefore, does not seem to have been well taken. By the return made by two of the members of the board of excise to the writ, it appears that the board did not pass upon the merits of the application. The return declares that “in refusing said application for license we did not make any inquiry as to the sufficiency of the accommodations of the applicants under the statute, nor as to the necessity of the license applied for, nor as to the form or sufficiency of the bond or application filed.”

Instead of considering the application, the board passed and entered on its minutes the following statement and resolution:

“ Resolved, that the reason given by the excise board for refusing to grant licenses in the town of Shandaken is this, that the majority of said board was elected by the people of the town for the purpose of refusing to grant licenses.” It further appears from the return that the majority of the board of excise were placed in nomination by persons opposed to the granting of licenses, and their election was deemed by them to have been a determination by ballot on the part of the qualified voters of the town in opposition to the granting of licenses, and it was supposed that such determination was in accordance with some statute providing for local option.

By chapter 3Ó0, of the Laws of 1845, electors of the several towns and cities of this state were authorized to determine by ballot whether the members of the boards of excise in their respective towns and cities shall or shall not grant licenses for the selling of intoxicating liquors, and in case the majority of the voters should vote in favor of “no license,” then the board of excise to be prohibited from granting any licenses. This act was repealed by chapter 274 of the Laws of 1847.

The learned counsel for the board of excise on the argument confessed that he had been unable to find any subsequent statute. on the subject other than § 41 of chapter 401, Laws of 1892. That section provides “ nothing herein except § 31 shall in any manner apply to any town- where the majority of voters have voted for, or hereafter vote for, such local prohibition.” The section quoted seems to recognize the existence of a statute on that subject, but, as has already been observed, there was none at the time of its passage. If it could be assumed that this section authorizes a majority of voters to vote in favor of local prohibition, and that thereafter and until the voters of such town should by vote reverse their action there should be no licenses granted, nevertheless it would not support the position taken by the respondents here.

The ballots were not cast in favor of local prohibition, but for candidates for the office of excise commissioners. The conclusion is, therefore, reached that the board of excise erred in assuming the existence of a law preventing them from considering and determining whether licenses should be granted to the several applicants.

Their action, being based on a misapprehension of law, amounted to legal error, which is properly reviewed by certiorari under the statute referred to. As it appears from the return that the board of excise did not consider the application of the relator upon the merits, as it was their duty to do, the matter must be sent back to them for their consideration and determination.

Ordered accordingly.


author: Parker, J,

text:
    The People ex rel. Albert L. Decker v. David V. Waters et al.

      (Supreme Court, Special Term, Ulster County,

      Filed June 1, 1893.)

    1. Excise—Right to license.
    As the law now stands, no person has a right, in a legal sense, to demand a license.

      .2. Same—Review by cebtiobabi.
    Where the hoard of excise has committed no errors of law in refusing an application for a license, the court has no power, under chap. 481, Laws of 1893, to review the facts and reasons which induced such action of the board, and reverse their action if it reaches a different conclusion thereon.
    '8. Same—Laws 1893, chap. 481—Constitutional law.
    It was not intended by the act that the courts or judges should secondarily have the same powers and perform the same duties as boards of excise have primarily; if it was so intended, the provision would be void, as the legislature has no power to require the supreme court, or a justice thereof, to perform other than judicial duties.
    Certiorari to review action of the excise board of the town ■of Saugerties.

      Brinnier & Newcomb, for relator; Carroll Whitaker, for resp’ts.
   Parker, J,

The relator seeks by this proceeding to review -the action of the respondents, who constitute the excise board of the town of Saugerties, in denying his application for a license.

Proceedings of this character appear to be authorized by chapter 481 of the Laws of 1893.

The members of the board of excise by their return set forth the proceedings at their meeting in May, by which it appears that they granted thirteen hotel licenses for the village of Saugerties and considered relator’s application and rejected it for reasons stated in a memorandum filed by said commissioners.

The facts alleged in the return must be taken to be true. If false the relator’s remedy is by action. People v. Vandevenler, 38 Hun, 43; People v. Board of Fire Com., 73 N. Y., 437; People v. Com. of Brooklyn, 106 id., 64; 8 St. Rep., 634.

No errors of law are presented, as was the case in Martin v. Symonds, this day decided, and resulting in a reversal of the action of the excise commissioners. But it was insisted that the statute makes it the duty of the court to review the facts and reasons which induced the board of excise to reject the relator’s application. In other words, it is claimed that the court or judge reviewing the proceedings must examine the facts set forth in the petition and return; and if he reaches a different conclusion as to the advisability of granting a license than that arrived at by the excise commissioners, he may, by order, reverse their action and command the board of excise to issue a license to the applicant. It has been the policy of the law-making power in this state not to give any person the right to demand a license.

The statute prescribes that the applicant for a license shall possess certain qualifications and comply with certain conditions before the board of excise can be permitted to grant him a license. When these conditions precedent are found to exist, the excise commissioners are required to consider the application and such other facts as they may deem pertinent, and then in the exercise of their discretion to grant or deny the application.

The law expects that these administrative officers will exercise the discretion given to them wisely and for what they shall deem to be the best interests of the municipality which they represent. This policy of the law not to give any one the right to demand a license has long been well understood. Indeed until the passage of chapter 481 of the Lawrs of 1893 no attempt was made even to provide for any review of the action of boards of excise.

That act does not purport to change the law in any such respect. Nowhere in it can be found an expression indicating that it was intended to give, under any circumstances to any person, a clear legal right to a license.

As the law now stands, therefore, no person whatever has a right, in a legal sense, to demand a license. Now the statute provides that the “court may make an order commanding such board of excise to grant such application and to issue a license to such applicant upon the payment of the propér license fee.”

While in the statute this proceeding is called a certiorari, the order which the section quoted authorizes is in the nature of a mandamus, and it is well settled that a mandamus will never issue except where there is a clear and specific legal right to be enforced, or a duty which can be and ought to be performed. High on Extraordinary Remedies, § 9; People ex rel Bailey, 12 Barb., 217; People ex rel. Perry, 25 id., 73-76; People ex rel. Mott, 64 N. Y., 600; People ex rel. Lunney, 72 id., 496; People ex rel Gaslight Co., 78 id., 56-61; People ex rel. McMackin, 107 id., 235; 11 St. Rep., 412; People ex rel. Nicholl, 122 N. Y., 191; 33 St. Rep., 296.

It will not be issued in cases of doubtful right. People ex rel. Nicholl; People ex rel. Mott, supra.

Now as the statute omits to give to an applicant an absolute right to a license, and the decisions deny to the courts the right to command by order the giving to another of that to which he has no clear legal right, hence within legal rules by which courts must be governed there is here no foundation for a mandatory order.

But it may be said that the legislature could provide for two administrative tribunals to pass upon the same question, of which the board of excise should be the first, and the discretion of the last to be final.

That the second or reviewing official should not be governed by the legal rules governing a review of administrative boards, but should pass upon the application in the same manner as the statute authorizes boards of excise to do.

That it was intended by this act that the last official to exercise the discretion permitted by the statute should be a court or a judge thereof.

Clearly, such could not have been the intention of the legislature, for it was without power to require the supreme court, or the justice thereof, to perform other than judicial duties, and it will not be presumed that it was intended to, transcend its power when the language employed is capable of the other interpretation.

The legislative and judicial are co-ordinate departments of the government of equal dignity; in the exercise of its proper functions each is alike supreme; the powers of government are apportioned by the constitution, and it does not subordinate any one of th^ three departments to another when performing the duties belonging to it.

Nor can such a result be accomplished indirectly by burdening one department with duties not belonging to it.

In 1791 congress passed an act concerning invalid pensions, directing the United States circuit court to take the evidence and pass upon the claims, subject to revision by the secretary of war and by congress.

The judges all agreed that the act was unconstitutional. Hayburn’s case, 2 Dallas, 409.

The circuit court for the district of New York, consisting of Chief Justice Jay, Justice Cushing and Judge Duane, said: “ Neither the legislative nor the executive branches can constitutionally assign to the judiciary'any duties but such as are properly judicial, and to be performed in a judicial manner.”

The circuit court for the district of Pennsylvania, consisting of Wilson and Blair, Justices, and Peters, District judge, said: “Upon the consideration we have been unanimously of the opinion that under this act the circuit court held for the Pennsylvania district should not proceed. First, because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the constitution in the courts of the United States; the circuit court must consequently have proceeded without constitutional authority.”

In Ferreira's case, 13 How., U. S., 40, decided in 1851, congress, by two acts, directed the judges of the territorial court of Florida to review, examine and adj udge all cases of claims for losses, and report his decision, if in favor of the claimants, to the secretary of the treasury, who, if satisfied that they were just and equitable, should pay the amount thereof. From an adjudication made an appeal was taken to the supreme court, where the appeal was dismissed for want of jurisdiction, on the ground that the decision was not the judgment of the court, but a mere award.

Subsequent to the decision, the attention of the court was called to the case of United States v. Todd, and a note was prepared by Chief Justice Taney and inserted by order of the court.

In it he stated the result of Eayburn's and Todd's cases to be “ that the power proposed to be conferred on the circuit courts of the United States by the act of 1792 was not judicial power within the meaning of the constitution, and was, therefore, unconstitutional and could not lawfully be exercised by the courts.”

He concludes as follows: “ In the early days of the government, the right of congress to give original jurisdiction to the supreme court in cases not enumerated in the constitution was maintained by many jurists, and seems to have been entertained by the learned judges who decided Todd's case. But discussion and more mature examination has settled the question otherwise; and it has long been the established doctrine, and we believe now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the constitution, and that Congress cannot enlarge it. In all other cases its power must be appellate.”

The constitution of the United States provides that “ the judicial power shall extend to all cases in law and equity arising under this constitution.” The state constitution declares “ there shall be the existing supreme court with general jurisdiction in law and equity.”

It seems to follow that the legislature cannot assign to the supreme court or the justices thereof the performance of administrative duties such as are devolved upon boards of excise, boards of health and boards of supervisors.

So it could not have been intended by the act that the courts or judges should secondarily have the same powers and perform the same duties as boards of excise have primarily. If it was so intended, the provision would be void.

In either case the result would not be different.

If the views so far expressed are well founded it follows that the proceedings must be dismissed.


author: ¡Herrick, J.—This

text:
    The People ex rel. Robert S. Jones v. Abram Bennett et al.

      (Supreme Court, Special Term, Albany County,

      Filed June 9, 1893.)

    1. Excise—Right to license.
    No person has an absolute legal right to receive a license
    2. Same—Review of action of board of excise.
    Where the application for a license has been received and acted upon, and the discretion of the commissioners exercised whether they will or will not grant a license, and if in the exercise of that discretion they have not proceeded upon illegal grounds or principles, the conclusion at which they arrive upon such exercise of their discretion will not he disturbed by the court.
    3. Same—Power of court.
    The court itself is not vested with the powers of excise commissioners, and will not determine whether a license should or should not be granted.
    4. Same—Refusal by board.
    The return by a board of excise to a certiorari under chap. 481, Laws 1893, stated that a majority of the board were elected upon a no license ticket and with the express understanding that they would not grant licenses; but also stated that they considered the application on the merits, and refused to grant it for the reason, among others, “ that a license is not needed in that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the communiiy-” Held, that as the return was sus-., ceptible of the construction that the commissioners were of the opinion that a license was not needed for that particular hotel because a sufficient number of places had already been licensed in that town, and for that reason refused to grant one, such consideration must be given to it; that there was, therefore, a legal exercise of their discretion, and their determination could not he interfered with.
    Certiorari to review the action of the board of excise of the town of Rockland, Sullivan county.

      J. A. Maybee, for relator; W. Martin Jones, for resp’ts.
   ¡Herrick, J.—This

This is a proceeding by certiorari under chapter 481, of the Laws of 1893, to review the action of the defendants in refusing to grant the relator a license to sell intoxicating liquors.

Decisions in proceedings of this kind have recently been rendered at several special terms in this state, and I presume the questions arising will be reviewed in some of the appellate courts, and I, therefore, do not deem it necessary to enter into a discussion of all the questions involved.

The decisions already rendered that have come to my notice, as I understand them, have concurred in holding that no person has an absolute legal right to receive a líbense.

That the granting or withholding of a license is within the discretion of the commissioners of excise.

That where the application for a license has been received and acted upon, and the discretion of the commissioners exercised, whether they will or will not grant a license, and if in the exercise of that discretion they have not proceeded upon illegal grounds, or principles, the conclusion at which they arrive upon such exercise of their discretion will not be disturbed by the court.

That the court itself is not vested with the powers of excise commissioners, and will not determine whether a license should or should not be granted. I concur in these conclusions.

In a case recently decided by Judge Parker, known as the Shandaken case, the commissioners refused to grant a license upon the ground “ that the majority of said board was elected by the people of the town for the purpose of refusing to grant licenses.”

And it was further set forth in the return made by them, “ that the majority of the board of excise were placed in nomination by persons opposed to the granting of licenses, and their election was deemed by them to have been a determination by ballot on the part of the qualified voters of the town in opposition to the granting of licenses, and it was supposed that such determination was in accordance with some statute providing for so called local option.”

In that case the excise commissioners did not exercise their discretion, did not consider the application of the relator upon the merits, and the learned justice, holding that there was on local option law, and the acts of the commissioners being based upon a misapprehension of law amounted to legal error, which could be reviewed by certiorari, sent the application for the license back to the commissioners for their consideration and determination.

In this case, while the majority of the defendants claim that they were elected upon a no license ticket, as did the defendants in the Shandaken case, and with the express understanding that they would not grant licenses for the sale of intoxicating liquors, yet they recognized the fact that they have the power vested in them to grant or withhold licenses, notwithstanding their election as so called no license commissioners, arid in the return to the certiorari they assert that they considered the application upon its merits, and refused to grant it for one reason, among others, “that a license is not needed in that hotel, and that the sale of intoxicating liquors thereat would result injuriously to the community.”

This reason that was assigned by them, taken in connection with that other portion of the return in which they set forth the issue upon which they were elected, and the evils they believe to flow from the liquor traffic, render this portion of the return a little indefinite as to its meaning; that is, as to whether they did not mean that a license was not needed at all, and the sale of intoxicating liquors at any place would result injuriously to the community, which taken in connection with the portion of the return referred to, is probably their meaning, or whether they mean by it a simple limitation upon the number of licenses granted in the town, and an expression of their opinion that a license is not needed for that particular hotel.

Just exactly what is meant could perhaps have been ascertained by a further and additional return, but none was asked, and that construction, I apprehend, must be given to it, if there is room for such a construction, which will constitute a legal reason for refusing to grant a license, or rather constitute a legal exercise of their discretion.

I am not prepared to say that commissioners of excise may not in the exercse of their discretion limit the number of licenses granted by them, and refuse to issue a license because there are already a sufficient number of places and persons licensed to sell liquor in their town, and therefore decide that an additional license is not needed. The return is susceptible of the latter construction.

The writ of certiorari is quashed, but inasmuch as the proceedings were commenced before any decisions had been made under the act in question and the law was so recently passed, and so little understood, it is quashed without costs.


author: Forbes, J.

text:
    The People ex rel. Burr J. Davis v. Charles F. Truman et al.

      (Supreme Court, Special Term, Tioga County,

      Filed June 27, 1893.)

    Excise—Local option.
    By§ 41 of chapter 401, Laws 1892, local option is re-enacted without prescribing definitely the method of preparing the ballots and casting the vote, independent of any prior act; and if a majority of the voters of a town express themselves against the granting of licenses by their ballots, voting for an excise board upon whom they rely not to grant licenses, they have a perfect right to do so, and in that manner they do, by local option, in effect.establish local prohibition within the meaning of said § 41; and the commissioners so elected have the undoubted right, relying upon their judgment, and supported by a majority of legal voters, to refuse all licenses, and thus establish, in fact, local prohibition under the law.
    Certiorari to review action of the board of excise of the town of Owego.

      Sears & Lynch, for relator; Frank C. Farrow and Andrus, for resp’ts.
   Forbes, J.

This is a special proceeding, by certiorari, to review the action of the respondents,-as excise commissioners for the town of Owego, in the county of Tioga, in this state, instituted under chapter 481 of the Laws of 1893, which amends § 24- of chapter 401 of the Laws of 1892. .

The action of the board of the commissioners of excise is sought to be reviewed under the foregoing title, together with four other proceedings instituted at the same time, and which by a stipulation, in open court, are to abide the event of this; and the- decision here is to be regarded as the decision and determination of all of the questions arising in each.

This proceeding is in the nature of a mandamus to compel the board of excise to grant a license to the relator. People ex rel. Decker v. Waters et al., ante, 720.

By the return made to these several writs issued, all of the steps taken on the part of the respondents, and also on behalf of each relator, are shown, and there is no dispute about the regularity of the applications, the form of the bonds, the character and fitness of the relators to receive a license, if one were to be granted; nor is there any dispute in this case that the relator’s place of business is a proper one in "which to sell strong and spirituous liquors and wines, as a keeper of an inn, tavern or hotel.

The relator is the 'owner of, and keeps as a public hotel, the Awaga House, in the village of Owego, N. Y., and this house is the leading hotel in said village. The relator is a highly respectable gentleman, possessing the requisite ability, and having ample accommodation, to entertain the traveling public.

The rector’s application having been made to the board of excise, and the bond required by law having been offered, at a regular meeting of the board, on the 5th day of June, 1893, said board received and proceeded to act upon said application; and the respondents Truman and Smith, being a majority of the commissioners of excise, refused to grant a license to said relator; 'and, upon a demand having been made upon them for the grounds upon which said refusal was based, they made and signed a statement, giving their reasons for the rejection of said application and their refusal to grant said license. The statement reads as follows: “ The reasons of the board of excise of the town of

Owego for refusing to grant a license in the case of the application of Burr J. Davis for a license as keeper of an inn, tavern or hotel, are: That a majority of this board, to wit, Commissioners

Truman and Smith, were nominated and elected as no-license commissioners, and that a majority of the voters of the town of Owego, at the last two annual town meetings therein, have practically expressed, by their votes for commissioners of excise, their opposition to the granting of any licenses. That there is no public necessity for granting such license and that the granting such license would be injurious to the welfare of the public. That from all the facts and circumstances of this case this board, in the exercise of its discretion, has refused to grant this license.

“Dated June 5, 1893.

C. F. Truman,

B. C. Smith.”

“(Endorsed) Filed June 5, 1893.

Fred W. Clifford, Clerk.”

Under the same date, the minutes kept by the clerk of the board show all of the proceedings had before said board; the number of applications made; the places sought to be licensed; the names of the applicants, and that1 all of the applications so made were rejected and the licenses denied.

This proceeding presents a case in which a majority of the commissioners were voted for as non-licensing commissioners, by a majority of the electors of the town of Owego, and the respondents are practically attempting to carry out the instructions of their constitutents.

The rejection of the relator’s application, and the refusal to grant him a license, are actually based upon three grounds.

First. That a majority of the board of the commissioners of excise are, in principle, opposed to the granting of any licenses in said town.

Second. That in their judgment, opinion and discretion, the granting of a license would be an unwarranted disregard of the wishes of a majority of the voters of the town of Owego; that such action by the commissioners would be against public policy, and would be an irreparable injury to the community at large.

Third. That upon a careful review of all these facts and circumstances, known to them, thev did exercise their discretion, as a board of commissioners, in refusing to grant a license to the relator, or to any other applicant therefor, in said town.

This presents the single' proposition whether, under the laws of 1892 and 1893, the respondents have arbitrarily, and without sufficient reasons therefor, refused a license to the relator, and whether this court has any power to disagree with them in their conclusions, and to direct them to act differently upon said application.

In the case of The People ex rel. Decker v. Waters et al., as commissioners of excise, supra, Parker, J., in writing the opinion in that case, held : “ That no applicant for a license to sell strong and spirituous liquors and wines has the absolute right to receive a license therefor.”

The same opinion has recently been expressed in the case of Cantini et al. v. Tillman et al., 54 Fed. Rep., 969. That was a case which arose in the circuit court of the IT. S., for the district of South Carolina, and was decided March 1, 1893, where the question was quite ably discussed by Sim on ton, District Judge. The case arose upon the constitutionality of a state law permitting the state of South Carolina to control the sale of all intoxicating liquors within the state, under an act passed December 24, 1892, entitled, “ An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this state, except as herein permitted.”

The case at bar differs from the one, “ In re Application of Martin v. Symonds et al." decided by Parker, J., under chap. 401 of the Laws of 1892, and chap. 481 of the Laws of 1893. In that case it was held that the commissioners of excise had no right to reject summarily, without passing upon the merits of the application, the petition of the relator. At the close of the opinion the following order was made: “ As it appears from the return that

the board of excise did not consider the application of the relator on the merits, as it was their duty to do, the matter must be sent back to them for their consideration and determination.”

In the case at bar the respondents received the application,, passed upon the merits of that petition, as they claim, and refused the license, giving as the reasons therefor the statement already referred to and quoted. So that the question is here for the first time squarely presented, whether such refusal to grant a license to the relator was the exercise of a proper discretion by said commissioners, and whether their position can be sustained under the laws of this state.

It is too plain to admit of any serious dispute that it was not intended by the legislature of this state to substitute a justice of the supreme court in the place of the commissioners of excise when they refuse to act favorably in granting a license-to any person, and if that were the object of the statutes referred to, those acts are clearly unconstitutional, for the reasons:

First. The commissioners of excise must be elected by the people, under the laws of this state; they are to be voted for upon a separate ballot, and that office cannot be held, nor can its functions be performed, in effect, by a justice of the supreme court Laws 1892,■ chap. 401, § 4; Constitution of the State of ¡New York, art. 6, § 10.

This provision of the state constitution applies as well to an appointment or substitution by the legislature as to an election by the people. The section reads as follows: “Art. 6, § 10. The judges of the court of appeals and the justices of the supreme court shall not hold any other office or public trust. All votes for any of them for any other than a judicial office, given by the legislature, or the people, shall be void.”

As there is no statute giving to the relator an absolute right to demand a license from the, excise commissioners, the attempt by the legislature is to use the courts as the instrument for granting the license through the commissioners, using their hands and names, to enforce the exercise of a judicial discretion nowhere given by the statute, nor warranted by the decisions of the courts.

It will be seen that this constitutional provision is intended to prohibit a justice of the supreme court from being substituted to act as a commissioner of excise in granting licenses, or in directing to whom licenses shall be granted, or to take the place of such commissioners, whose official acts are plainly pointed out by statute.

Second. A justice of the supreme court cannot and should not be compelled to exercise any except judicial functions.

The court might have the power to enforce a law which is being disobeyed; such act would be a proper judicial exercise of power; is lawful'and commendable, even. In the case of The People ex rel. Decker v. Waters et al., supra, and the cases there cited, Mr. Justice Parker has fully discussed this last proposition, and with his conclusions in that respect I am satisfied. My views are also in harmony with those of that court with reference to power of the justice to interfere with the discretion and determination of the board of excise where the merits of the application have been passed upon and the license refused; and it seems to me that the conclusions arrived at in that case must be decisive of those questions in the case at bar, so far as the application and the refusal are concerned to grant the license in question.

The only remaining proposition to be discussed is this one: Was the application acted upon and the license to the relator refused so far upon the merits as to be binding upon this court ?

In the case of the application of Martin v. Symonds et al., Justice Parker also held, that the former “local option” law, of this state, is not in force. ¡Efe seems to have based his opinion upon the repeal of the statute of 1845, chap. 300, passed May 14, 1845, and chap. 14 of the Laws of 1846, passed February 16, 1846, both of which acts were repealed by chap. 274 of the Laws of 1847, passed May 12, 1847.

That the statutes of 1845 and 1846 were repealed by the act of 1847 there can be no doubt; and perhaps there is some question whether “local option” was revived by chap. 549 of the Laws of 1873, which was passed to amend an act passed April 11, 1870, and also to amend the general “Act for the suppression of intemperance, and to regulate the sale of intoxicating liquors,” passed April 16, 1857.

By § 6 of the act of 1873 the following provision is made: “Sec. 6. Nothing herein contained shall in any manner apply to. any city or town where the majority of voters have voted for, or shall hereafter vote for local prohibition, in accordance with any law providing for such vote, until such city or town shall reverse by vote such local prohibition.

“ 7. This act shall take effect immediately.”

I have been unable to find any law which wholly revives the act of 1845. While the peculiar wording of § 6 of the Laws of 1873 predicates the validity of local option upon some prior act of the legislature, which it was assumed was then in force, permitting local prohibition, it will be seen, however, by reference to chapter 401 of the Laws of 1892, § 41, that local option is, in effect, re-enacted without prescribing definitely and at length, as did the law of 1845, the method of preparing the ballots or casting the vote by the people; this act is so framed that it does not make § 41 of the act of 1892 dependent upon any prior law of this state, but, in terms, it does give the right to a majority of the voters of a particular town to say, by their ballot, that local prohibition shall be enforced in that town, when a majority of votei-s may so determine. The section referred to reads as follows “ § 41, Local option. Nothing herein, except § 31, shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall reverse, by vote, such local prohibition.”

It is true that there is no method pointed out by which a ballot shall be prepared in which the voter shall say that he is in favor of local prohibition; but he surely has a right to nominate in •caucus, or without such nomination to place upon bis ticket, any name, and vote for any person whom he knows to be in favor of not granting licenses. Montgomery ex rel. Seeley v. O'Dell, , 51 St. Rep., 444.

And if a majority of the voters of a town so express themslves, by their ballots, voting for an excise board upon whom they rely not to grant licenses, they have a perfect right to do so, and, in "that manner, they do, by local option, in effect, establish local prohibition, within the meaning of § 41 of the Laws of 1892; and the commissioners so elected have an undoubted right, relying upon their own judgment, supported by a majority of legal voters, to refuse all licenses and thus establish, in fact, local prohibition under the law.

It must therefore be held that the respondents have done all that they are required to do by § 17, chapter 401, of the Laws of 1892. They met in the town, received and considered the application of the relator, and decided that it was not a proper case in which to grant, and determined that they would not grant a license.

The fact stated in the return must be taken as established. People ex rel. Decker v. Waters et al. and cases cited, supra.

By the return it appears that a majority of the voters of the town of Owego, at a regular town meeting, voted for the enforcement of local prohibition, and against the granting of licenses; by electing a majority of non-licensing excise commissioners, and this court will not overrule their action, nor will it interfere with the enforcement of the will of the people expressed by such majority.

The court must assume that the majority of the commissioners did not act arbitrarily in refusing to grant said license, or without sufficient reason therefor; but, as they believed, in the best interests of the town of Owego, disclosed by all of the facts and circumstances before them.

Adopting their conclusions, this court now determines that said application for a license to the relator was denied for good and sufficient reasons therefor; and the determination of the majority of the board of excise commissioners must and hereby is sustained; but, as the main question involved in this case is a new one, without costs to either party. An order may be entered dismissing these proceedings accordingly.


author: Per Curiam.

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

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Chattel mortgage—Failure to file within reasonable time.
    The defendants Kenyon gave a chattel mortgage to defendant Harris in July, 1889, which was not filed until September following. Plaintiffs had sold goods to tile Kenyons prior to the giving of the mortgage, for which they recovered judgment after the mortgage was re-filed. Held, that the mortgage was invalid as to them because not filed within a reasonable time.
    Appeal from judgment in favor of defendants.
    Action to set aside a chattel mortgage on the ground that it was given for the purpose of defrauding the creditors of the defendants Kenyon, and that plaintiffs were judgment creditors of defendants Kenyon. It appeared that prior to July 6, 1889, defendants purchased goods of plaintiffs; that on that day they gave a chattel mortgage to defendant Harris, which was not filed until September 6, 1889; that it was re-filed in August, 1890, and foreclosed in March, 1891; that plaintiffs recovered judgment on their debt February 10,1891, after the refiling.

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

       See 49 St. Rep., 183.

   Per Curiam.

Heretofore the of the trial court in this case was affirmed by this court upon appeal.

Subsequently, at the February term, 1893, of this court, a re-argument of the appeal was ordered,

Upon a reconsideration of the case, we are satisfied that it comes plainly within the rules laid down in Karst v. Gane et al., 136 U. Y., 316; 49 St. Rep., 740,' and that following that case the judgment herein should be reversed, and a new tzlal ordered, costs to abide the event.

Mayham, P. J., Herrick and Putnam, JJ., concur.


text:
    Charles E. Bullard et al., App’lts, v. Mary C. Harris, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Appeal from order denying motion to set aside judgment entered in favor of defendant for costs.

      E. F. Bullard, for app’lt; Henning & McCall (W. H. McCall, of counsel), for resp’t, Kenyon; J. H. Benedict, for resp’t, Harris.

       See 49 St. Rep., 133.

   Per Curiam.

This is the same case as that of Bullard v. Kenyon, in which a separate judgment was entered in favor of the defendant, Harris, against the plaintiff, Bullard.

Following the decision in that case made at this term of court, judgment herein should be reversed, and a new trial ordered, costs to abide the event.

Mayham, P. J., Herrick and Putnam, JJ., concur.