author: Barrett, J.: Davis, P* J.: Brady, J.,

text:
    GUSTAVE BRUECK, Respondent, v. THE PHŒNIX INSURANCE COMPANY, Appellant.

      Policy of insurance against fire — when a renewal thereof is avoided hy an increase in the risk, though the assured had no knowledge thereof.

    A policy of insurance issued by the defendant provided that “this insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same, and it shall be considered as continued under the original representations, and for the original amounts and divisions, unless otherwise specified in writing: but in case there shall have been any change in the risk, either within itself or by neighboring buildings, not made known lo the company by the assured, at the time of renewal, this policy and renewal shall be void.”
    In an action to recover for a loss occurring after a renewal of the policy,— Seld, that if there had been any change in the risk, increasing the hazard, after the first insurance and before the renewal was delivered, whether known or not known to the plaintiff, and it was not made known to the defendant at the time of the 'renewal, the policy and the renewal thereof was void, and no recovery could be had thereon. (Brady, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      This action was brought to recover the damages caused by a fire which destroyed certain stock and materials which were claimed by the plaintiff to have been insured, at the time of - the- fire, by the defendant. The fire occurred at Nos. 315 to 321 East Twenty-second street, in New York city, on April 18, 1877, in a large five-story building, in the • third story of which the plaintiff manufactured fans. On April 7, 1876, the defendant issued its policy of insurance to one A. Hoegg, against loss or damage by fire to the amount of $1,500, on the stock and materials used in the manufacturing of fang on said premises, for the period of one year from that date. On January 10, 1877, the interest of the said Hoegg was, with the consent of the defendant, assigned to the plaintiff.
    Herbert 0. Plass, a man who had for years been an insurance broker in the city of New York, acted as the agent of the insured in procuring this policy, and as the plaintiff’s agent in obtaining the defendant’s consent to the said’ assignment, and afterwards in obtaining a certificate of the renewal of the policy.
    At about the time the policy was issued, the defendant caused the premises (where the insured property was kept) to be surveyed by Mr. Mayer. A few days after the delivery of the certificate of renewal, the defendant had the premises re-surveyed by Mayer, who found, and reported to the defendant, that the risk had been changed since the policy was issued, and before the renewal was applied for.
    In consequence of this change of risk, the defendant sent for Mr. Plass, and three days thereafter, on April 16,1877 (two days before the fire), Mr. Plass called upon the company. The defendant required a greater premium to continue the insurance, but Mr. Plass declined to give it. The defendant then demanded the renewal certificate to be returned, and it was claimed by it on the trial that Mr. Plass promised to do so, and agreed, that the policy should be considered canceled.
    The defendant had no notice of the change in the risk, when the renewal receipt was given.

      B. G. M. Ingraham, for the appellant.

      B. F Watson, for the respondent.
   Barrett, J.:

I am unable to concur in the second point discussed by niy brother Brady. In my judgment the refusal to charge as requested by the defendant’s counsel:

“ That if there was any change in the risk, increasing the hazard after the first insurance and before the renewal was delivered, whether known or not known to the plaintiff, and it was not made known to the defendant at the time of the renewal, then this policy is 'fluid, and the plaintiff cannot recover upon it,” was error. It was provided in the policy as follows:

“ This insurance (the risk not being changed) may be continued for such further time as shall be agreed on, provided the premium therefor is paid and indorsed on this policy, or a receipt given for the same, and it shall be considered as continued under the original representation, and for the original amounts and divisions, unless otherwise specified in writing; 'but in case there shall home been am/y change in the risk, either within itself or by neigliborvng buildings, not made known to the compa/ny. by the assured, at the tíme of renewal, this policy and renewal shall be void.” ■

This language is unambiguous — “ any change in the risk ” not “ any change in the risk known to the insured.” The change referred to is, of course, such as increased the risk. (Parker v. Arctic Fire Ins. Co., 59 N. Y., 1.) But of such a change, the plaintiff under his contract could not plead ignorance. The provision cited would become practically valueless, if the insured could escape its force and effect by shutting his eyes to his own affairs, neglecting his business or other inactivity. Nor were the defendants bound to prove a scienter. If they established to the satisfaction of the jury such a change as increased the risk, the renewal fell. As was said in Parker v. Arctic Fire Ins. Co., supra, “if notice was not gimen, the assured would lose the benefit of the contract, if it turned out that the risk was increased thereby.” This is in accordance with the spirit as well as the letter of the contract. The parties fully understood their respective rights under the original policy. The renewal was predicated upon an unaltered status. The provision requiring the insured, as a prerequisite to a valid renewal, to make known to the company any change in the risk, was for the express purpose of throwing upon him the burden of knowledge. He was bound to inform himself upon the subject before applying for a renewal. This was not unreasonable, considering his facilities for information as to his own property and business. What was important to the company was the faet as to a change. This provision was intended to obviate any necessity for inquiry upon its part, every time the policy was renewed, and to compel the insured to speak if there was anything of importance to be said. Under this, the company was not bound to make any investigation or inquiry as to a change in the risk. It was entirely justified in resting upon the contract and assuming, in the absence of notice; that the condition of things contemplated by the policy remained unchanged.

Nor am I entirely prepared to concur in the view taken of the insurance broker’s authority. It seems difficult to distinguish the case on this head from Standard Oil Co. v. Triumph Ins. Co. (64 N. Y., 85). The same doubts apply to the exclusion of the evidence offered as to custom. But without passing definitively upon these latter questions, I think there should be a new trial because of the refusal to charge as requested with respect to the change in the risk.

Davis, P* J.:

The application for the renewal, without notice of any change in the risk, taken in connection with the language of the policy, was, in my judgment, in legal effect a warranty on the part of the assured that no change, substantially increasing the risk, had taken place. It would make no difference in the effect of such warranty that a material change, increasing the risk, was in fact unknown to the assured. He undertakes that it does not exist, and not that he is ignorant of its existence, and he must be bound by his contract. Por this reason, as well as for the views suggested by my brother Barrett, I fully concur with him that a new trial must be granted on the exception to the refusal of- the court to charge on this subject, as requested by defendant.

Brady, J.,

dissenting:

This was an action upon a renewal policy of insurance issued by the defendant to one A. Iioegg on April 8, 1876, for the term of one year, which was subsequently, and with the consent of the defendant, assigned to the plaintiff. The renewal was on April 4, 1877, for the term of one year, to wit, from April 7,1877, to April 7, 1878.

On April 18, 1877, the property was destroyed by fire, of which the plaintiff gave due notice and proof of loss more than sixty days previous to the commencement of this action. The answer contains denials of material allegations, and sets up, as a defense, that before the making and delivery of the renewal, there was a change in the risk taken by it at the time of the issuing of the original policy, by which the risk was increased, and of which change no notice was given to it at the time of the renewal, or at any other time, and that it was wholly ignorant of such change. A great many exceptions in reference to evidence, were taken upon the trial, and the' jealous counsel for the defendant omitted no opportunity to secure, by exception, if valid, a rehearing, in case the plaintiff should succeed. Such of these exceptions as are deemed at all material will be. noticed, of which it must be said, there are very few; the whole case depending substantially upon questions of fact. The chief reliance of the defendant was upon the failure of the plaintiff to secure the renewal by omitting to pay the .premium before the fire, the change of risk, and his failure to advise them of it, and an alleged cancellation of the policy by it, by proper notice founded on such change. The first and second propositions were submitted to the jury by the learned justice presiding at the trial in terms clear and distinct, and the facts and circumstances bearing upon them presented by the evidence, on behalf of either of the litigants, were stated by him, and their effect, if found one way or the other, also stated. With regard to the first proposition, it must be said that payment of the premium, at the time of renewal, is not absolutely necessary to malte the contract of insurance binding upon the company. It may be waived by, a credit given, and whether a credit was given or not is a question to be submitted to the jury. (Angell v. Hartford Fire Ins. Co., 50 N. Y., 171; Church v. Lafayette Fire Ins. Co., 66 Id., 222.) The course indicated by these decisions was adopted by the learned justice presiding, and the question whether the payment of the premium, in strict compliance 'with the terms of the policy, had been waived, was submitted on the evidence relating thereto, and decided in favor of the plaintiff. That is all that it is deemed requisite to say in regard to this element of the appeal.

In reference to the second proposition it must be said that in order to relieve an insurance company from the obligation to pay the loss of the insured where there has been a change in the risk of which they were not advised upon the renewal, it is necessary to establish more than the mere fact of such change; it must appear that the change actually increased the risk and that the insured knew it and suppressed the fact, or made a false representation in reference to it. In this case- it appears that the plaintiff did not know of the increased risk and the jury have so found, that fact having been submitted to their consideration because they were instructed that if the risk were increased and the plaintiff knew- it, the defendant was absolved from all liability; but if the jury thought upon the evidence that the risk was not increased, then the defendants were not relieved from the duty of paying the plaintiff’s losses. This feature of the case was submitted with proper instructions to the jury as a question of fact, as already intimated, and they found in the plaintiff’s favor. It is thought that the following authorities bear out the view expressed of this question: Parker v. Arctic Fire Ins. Co., 59 N. Y., 1; Gates v. Madison Cotunty Mutual Ins. Co., 5 Id. 469.

The asserted cancellation of the policy is sought to be established by proof of notice given to one Plass, who made application to the defendant for the renewal policy and who was paid by the defendant a commission for placing it. The notice by the defendant which was founded upon the asserted change in the risk was not communicated to the plaintiff by Plass. It was assumed by the learned judge in his charge that Mr. Plass had no authority from the plaintiff' to cancel the policy or to act for him in reference to such cancellation, and that the plaintiff was therefore entitled to notice of the intention of the company to cancel the policy, and also to a reasonable time to re-insure. There was no exception taken to this statement of the law, nor was there any request made to submit to the jury the question whether Mr. Plass was the agent of the plaintiff, although perhaps that point arises upon the offer of the defendant in relation to the custom regulating the intercourse of agents of the insured and insurance companies, and the motion to dismiss the complaint upon the ground that the company had terminated the policy by notice to the plaintiff before the fire.

It appears that Mr. Plass was spoken to by the plaintiff in reference to the renewal and that he was frequently asked to obtain insurance for the plaintiff, but was never invested with any authority beyond what was necessary to accomplish this service. Mr. Plass said (and he was examined on behalf of the defendant) in reference to the policy in question, that he did not obtain any instructions from the plaintiff as to its renewal, other than the order to obtain it. It appears also from the testimony that when Mr. Brueck wanted anything done in regard to his insurance, he sought him for that purpose, and it is quite clear from their intercourse that he had no general instructions of any kind. The plaintiff himself testified that Mr. Plass had no authority from him to cancel his policy, and it is apparent from the evidence of the former, that Mr. Plass was not created by him his agent, with full power to act for him, and that his authority was limited to the acts he was spécially instructed to perform. It was for these reasons, doubtless, that the learned judge presiding took the ground-upon the trial already mentioned, namely, that Plass had no authority to cancel or accept notice of the cancellation of the policy on behalf of the plaintiff. Assuming this to be the correct view of the relations between Plass and the plaintiff, the custom to which reference has been made is wholly immaterial. If Plass was the general agent of the plaintiff, authorized to secure and for placing and keeping upon the plaintiff’s property a line of insurance, and thus endowed with general authority over the whole subject, such a custom as mentioned might be controlling on the authority of the decision in the case of Standard Oil Co. v. Triumph Ins. Co., reported in 64 N. Y., 85. But, as already suggested, such relations did not exist. The custom referred to seems to be expressed in the following question :

“ Q. In this country, is it the general custom when agents have effected insurance with an insurance company for their principal, and the company sees fit to terminate tlie insurance, for the company to give notice to the agent who has effected such insurance ?”

Which, being objected to, was excluded, unless notice of the custom was brought home to the plaintiff. The counsel for the defendant did not, however, assert, either directly or indirectly, that he could establish notice to the plaintiff of the custom or his knowledge of it, or bring it home to him. A custom or usage of trade should be so general that the parties dealing in reference to the subject to which it relates, must be assumed to have knowledge of it and therefore to have incorporated it in the contract made. Doubtless the defendant regarded another question which was excluded as an embodiment of the proposition just stated, which was as follows :

“ Q. Is it the custom among the insured to place their insurance business in the hands of insurance brokers for the purpose of effecting insurance upon their property, and of receiving notices for them, of the termination of insurance upon their property ?”

It was excluded for the same reason as the other question, namely; unless notice of the custom to which it referred was brought home to the plaintiff. The counsel for the defendant did not assert that he could comply with the condition suggested in the ruling of the presiding judge, and therefore relied upon the abstract proof of the custom only which the question revealed. The counsel for the defendant did not either pursue the subject thus introduced by further questions, which would probably have developed the extent or universality of the custom. The questions themselves are not sufficiently broad to indicate the universality suggested, without which, as already expressed, the custom would not be binding, and ought not to be binding upon the plaintiff.

The facts in reference to the notice upon which the defendant relied in this case, afford a striking illustration of the injustice which would be done by allowing a custom other than one universally known to defeat the plaintiff’s claim. The notice was as follows:

“New Yoke, Aprii 13, 1811.

“ Please call at this office, reference to risk of Gr. Brueck, Nos. 315 to 21 East 22d street. Risk very much changed since last survey. Tours resp’y,

“PHENIX INS. CO.

“B.

“ To Herbert C. Plass, Esq.,

“71 Broadway,

“ Room 75, city.”

and was received by Plass ou April 14,1877. On April 16, the latter, iu compliance with its request, went to the office of the company and had therein an interview with some of the officers, but which was not communicated to the plaintiff until after -the fire had begun, Plass admitting, ou the stand as a witness, that he sent no communication to the plaintiff in reference to it prior to the occurrence of the fire.

For these reasons the asserted cancellation of the policy amounted to nothing, and therefore did not release the defendant from the obligations incurred by the renewal. It is considered that these views embrace the real salient points of this controversy, and dispose of this appeal in favor of the plaintiff.

Judgment reversed; new trial ordered; costs to abide event.


source: Caselaw Access Project

author: Barrett, J.: Davis, P. J.: Ingalls, J.,

license: Public Domain

text:
    JOHN S. BANCROFT and others, Appellants, v. JOHN V. SHEEHAN and others, Respondents.

      Mvidence — what mazy be given by the plaintiff in rebuttal of a defense rawed by the 'defendant's evidence.

    This action was brought to recover a balance due on an account for caps sold and delivered by the plaintiffs to the defendants. The answer was a general denial. Upon the trial, the plaintiffs having proved the manufacture and shipment of the caps, pursuant to a contract, and rested, the defendants proved that the caps were imperfect, in that the crowns were not properly stitched to them, and came off, thereby rendering them unsalable, and that I hey had, for that reason, returned them to the plaintiffs. The plaintiffs then offered to disprove the statement made by the defendants as to the alleged defect in the caps; but the evidence was excluded on the ground that they should have offered the testimony before closing their ease.

      Held, that it was error to exclude the evidence.
    That the plaintiffs were justified in resting their case upon proof of the manufacture and delivery of the goods, and were not obliged to prove that particular defects therein, which the defendants might set up as a defense, did not in fact exist. (Ingalls, J., dissenting.)
    Appeal from a judgment in favor of the defendants, entered upon the verdict of a jury.
    This action was brought to recover a balance of an account for goods sold and delivered, after crediting thereon a payment of $187.09. The answer alleged that the payment of the $187.09 was in full of all indebtedness, and of all claims and demands whatever, and denied any indebtedness to the plaintiffs.

      A. JR. JDyett, for the appellants.

      William G. Wilson, for the respondents.
   Barrett, J.:

I am unable to concur in the result at which my brother Ingalls has arrived. There is a question not discussed by him which seems to me to be decisive of this appeal. The complaint simply charges an indebtedness on a balance of account for goods sold and delivered. As to this the answer is substantially a general denial. Upon the trial the plaintiffs proved the manufacture and shipment of the caps, pursuant to the contract, and rested. The defendants were then permitted to prove, although there was no such defense set up in their answer (a fact to which I allude not as objectionable in itself, but as bearing upon the question hereinafter discussed), that the caps were imperfect. The specific defect testified to was that the crowns were not stitched to the caps, and that they fell off to the number of eight dozen or thereabouts. Tn consequence of this condition of things, the defendants returned the caps and refused to pay for them. Hence this action. When the defendants rested, the plaintiffs offered to disprove the statements made by the defendants’ witnesses with respect to the specific defects in the caps, but the testimony was excluded. This, I think, was error. I notice from certain observations in his charge to the jury that the learned judge placed his exclusion of such testimony upon the ground that the plaintiffs were bound before resting to exhaust their case. This was undoubtedly so. But with great respect, I think the rule was misapplied. The plaintiffs were not bound to forestall the defense. They were quite justified in resting upon proof of the manufacture .and delivery of the goods under their contract. It was proper also to show that the goods v/ere made in accordance with the contract. But it was quite time enough when the defendants sought to justify the return of the goods, by proof of specific defects, to rebut such proof by counter evidence on their part. The evidence excluded was rebutting. It is tine that • the plaintiffs probably knew, from the commission on file, what line of proof the defendants intended to offer. But that did not affect the question as to the proper order of proof. The latter depended upon the pleadings and not upon the extraneous incident of information as to the adversary’s hand. The effect of this ruling was, of course, disastrous to the plaintiffs. It entirely excluded their side of the case, and left the jury no alternative but to render a verdict for the defendants upon uncontradicted testimony.

I am, therefore, of opinion that this judgment should be reversed, and a new trial ordered, with costs to abide the event.

Davis, P. J.:

I am of'the opinion that, under the established practice in trials of this kind, it was not necessary that the plaintiff, in making out his case, should go farther than to show generally the sale and delivery of the goods. He was not bound to anticipate particular defects and give evidence to show that they did not exist. If that were the rule as to one defect, it would be to all that possibly might be attempted to be shown, and such trials would become interminable by requiring the plaintiff to call numerous witnesses to repel the idea that am/y possible defect that defendant might attempt to prove actually existed. On the contrary, the plaintiff may rest on proof of sale and delivery, and i f the defendant gives evidence tending to show specific defects, he may call wetness in regard to such alleged defects, without, being subject to the rule enforced by the court in this case.

I concur with my brother Bakrett that the evidence offered should have been received, because it was in rebuttal.

Ingalls, J.,

dissenting:

This action seems to have been rightly decided so far as the merits are concerned. The facts established a decided preponderan ce in support of the proposition that the caps which were returned were defective, and not in accordance with the contract. It is insisted by the plaintiffs that as the agreement under which the caps were manufactured was executory, the defendants were bound to return all the caps which were delivered thereunder, before they could be legally excused from the payment of any portion of the price. We do not think this case can be brought within the principle which the appellants invoke in their behalf. ■ The caps were delivered by two .consignments; one in January, 1877, and the other in February, of the .same year. The first lot were found to be perfect, and in accordance with the contract, and were sold by the defendants to their customers before the receipt and opening of the second package of caps. It therefore became impossible for the defendants to return to the plaintiffs the caps which were first received, and there wins no reason for return, as they were entirely satisfactory. All of the defective caps were in the second lot, and were received on February 5, 1877, and were opened on the 10th of the same month, and, being found defective, were returned to the plaintiffs. A few days thereafter, the defendants addressed to the plaintiffs a letter, accompanied by a check for the balance of the accoimt, which the plaintiffs received, and the following are copies of such letter and check :

“ Ann Harbor, Michigan, March 7th, 1877.

Messrs. J. S. Bancroft & Co.:

Gentlemen: — Inclosed please find check to balance account in full to date. Your letter came to hand a few days ago, and contents noted. The goods we returned you were unsalable, and not made according to contract. We would advise you, before you do anything rash, to inspect the goods and save expense.

“ Yours very respectfully, SHEEHAN & CÓ.”

“ Ann Harbor, Michigan, March Yth, 18YY.

“ $61.06. Ann Harbor Savings Bank.

“Pay to the order of ourselves ($61.06) sixty-one j™dollars.

“SHEEHAN & CO.”

Indorsed: “ Pay to the order of J. S. Bancroft & Co., in payment of our acct. in full.

“ SHEEHAN & CO.

“ J. S. BANCROFT & CO.

“J.W. KNIGHT.”

From the evidence, it appears that the plaintiffs received the letter and check, and negotiated the latter, which was paid by the defendants. It is insisted further by the plaintiffs, that the delay in opening and examining thg second package of caps was such that the defendants should be held to have accepted them. We think otherwise, under the circumstances of this case. The delay was only live days — from the 5th to the 10th of February — and the first lot being perfect, there was nothing to lead the defendants to apprehend that the last sent would prove otherwise. The defendants gave evidence explaining the delay, and the court submitted the question to the jury to determine whether, in view of all the circumstances, there had been unreasonable delay on the part of the defendants in regard to the opening and examining the caps; and they must necessarily have found that no such delay had been shown. Again, the fact, that the plaintiffs negotiated the cheek, after notice that a portion of the caps had been returned, and that such check was sent to pay the balance of the amount in full, is more significant against the plaintiffs’ case, in our judgment, than the delay of five days by the defendants to open and examine the caps can be regarded as against the defendants’ case. The plaintiffs made the following request;

Plcántiff s’ Counsel: We would like to ask your honor for per- ,, mission to give the evidence in regard to the condition of these goods.”

• Excluded. Testimony closed.

The granting or refusing of this request was discretionary with the court, and furnishes no ground, under the circumstances, for reversing the judgment. (Hastings v. Palmer, 20 Wend., 226; Ford v. Niles, 1 Hill, 300 ; Silverman v. Foreman, 3 E. D. Smith, 322.) We have examined the exceptions taken by the plaintiffs to the charge of the judge, and to his ruling, in receiving and excluding evidence, and discover no error which could have prejudiced the case of the plaintiffs. We are convinced that substantial justice has been done in this case, and that no sufficient reason has been shown by the plaintiffs which requires the court to reverse the judgment, which should be affirmed with costs.

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


author: Barrett, J.: Davis, P. J.: Brady, J.,

text:
    In the Matter of the Petition of JOHN T. LORD, to Vacate an Assessment, etc.

      Application to vacate an assessment — when denied on account of the laches of the petition&r — 1858, ch. 338.
    On December 37, 1876, this proceeding was commenced to vacate an assessment for paving a street in tlie city of New York, which had been confirmed in 1869, on the ground that the ordinance, directing the work to be done, had not been published, as required by the charter. Upon the hearing, it • appeared that, while the list was in the hands of the collector, and prior to January 1, 1871, the assessment upon twenty-four of the parcels, amounting to $6,661.63, had been paid; that the assessment.upon five of the thirtvone remaining parcels, returned to the bureau of arrears as unpaid, had been paid before this proceeding was commenced; that the assessment upon all the others had been vacated, by orders of the Supreme.Court, made in 1871, 1873 and 1873. and that two of the lots, upon which the assessments had been paid, liad changed hands and now belonged to different persons.

      Held, that, as it- appeared that the assessment had been partly enforced and paid, and that some of the lots had changed hands, thereby rendering it impossible to do justice to the other property owners, if the assessment upon the petitioner’s lot should be vacated, his application should be . denied on account of his laches in instituting the proceedings. (Brady, J., dissenting.)
    Appeal from an order made at a Special Term, denying a motion to vacate an assessment for paving Great Jones street, and from an order denying a motion made by tbe petitioner for leave to reopen tbe case and put in farther proof.
    Tbe work was completed in April, 1869, and tbe assessment confirmed in September of tbat year. On December 27, 1876, this proceeding was commenced, to vacate the assessment, on the ground that the ordinance directing the work to be done had not been advertised before its adoption, as required by the charter, and that an assessment for a prior pavement of the street had been laid on the lot, and paid. No proofs were taken in the matter until April 10, 1878. It was brought to a hearing on May 20, 1878, and the prayer of the petition was denied at the Special Term, on the ground of laches. The General Term affirmed the decision of the Special Term, and the Court of Appeals reversed that decision and ordered a re-hearing. (78 N. Y., 109.) Upon the re-liearing it was shown that of the entire assessment, amounting to $20,362.15, $7,067.07 had been paid prior to the filing of the petition. And also, that two of the lots upon which the assessments had been paid had since that time changed hands, and now belonged to different persons.
    Judge Donohue held that this proof established a proper case to deny the application, within the opinion of the Court of Appeals, saying: “ It seems to me that where improvements are made which the law intended property benefited should pay for, thattliere should be some limit to the time when they should be attacked. Papers may be lost, facts forgotten, or othei rights arise, as here, when the city is placed where nothing can be done even by legislation to obtain redress. Here the facts disclose that part of the assessments are paid, property has changed hands, and justice requires that the party who slept on their rights should be barred. There are cases where this may be excused by actual want of business knowledge, or in some other way, but here it is not. Motion denied.”
    The petitioner’s attorney then applied for leave to re-open the case, aird put in further proof, which was denied.

      T. F. Neville, for the appellant.

      J. A. Beall, for the respondent.
    The equitable doctrine of laches is applicable in proceedings under chapter 338 of Laws of 1858. (People v. Mayor, 2 Hill, 12, 13 ; Elmiendorf v. Ma/yor, 25 Wend., 693 ; People y. Mill, 53 N. Y., 519 ; People v. Supervisors Alleghany, 15 Wend., 198; People v. Shillwell, 19 N. Y., 531;
      State y. Newark, 30 N. J. Law, 303 State v. Jersey City, 35 Id., 455 ; Chinn v. Trustees, 32 Ohio St.; Am. Law Reg., March, 18?9, p. 203 ; People y. Utica, 65 Barb., 9.; Wiggm v. Wiggm, 9 Paige, 25.)
   Barrett, J.:

I am in favor of the affirmance of the orders appealed from substantially upon the opinion of Donohue, j., in the court below. A few words, in addition, may not, however, be out of place. Upon the present hearing, the city has supplied the very proofs, the absence of which, upon the former hearing, was illustratively dwelt upon by the Court of Appeals. It now appears that the assessment has been partly enforced and paid; also, that some of the lots have changed hands. Thus, owing to the petitioner’s great laches, it has become impossible to do justice to other property owners. The petitioner has enjoyed the benefit of the improvement during all these years, and now, upon a mere technicality, without alleging fraud, oppression or even unreasonable charges, he seeks to throw the burden upon the general tax-payers of the city, mcluding, of course, these very property owners who home already paid their full sha/re of the cost cf the work. If others have succeeded in vacating the assessment, it was because they moved in due season. That incident ought not to avail the petitioner. The question of his laches is an independent one. If he had moved within any reasonable time, the merely formal irregularities of which he complains might have been corrected, and a new assessment effectively laid. The latter is now practically impossible. There is no real merit in the application, and, under' the intimation of the Court of Appeals, as to the effect of the evidence now before us, it should be denied.

The order should be affirmed, with costs.

Davis, P. J.:

I think the order should be affirmed for the reasons assigned by Barrett, J. They show that substantial justice was done by the court below, and that ought to be the object in reviewing these assessments. The strict technicalities that have controlled this class of cases have been, largely productive of the greatest injustice to the tax-payers of the city.

Brady, J.,

dissenting:

This matter was heretofore before this court, the petition having been denied at the Special Term, upon the ground that the petitioner was guilty of laches and therefore not entitled to relief. On appeal to the Court of Ajapeals from our judgment the order was reversed and. a r'e-hearing ordered. It was declared by the court of last resort in reference to these applications that regard must be had to all the circumstances of the case, especially to such as show a change in the property or the relative position of parties or persons interested or affected; and it was said that it did not appear that the city had ever enforced the assessment against any property or owner thereof, or that any owners had ever voluntarily paid; and that, so far as the record showed, there had been no change in the relative position of any of the natural persons affected or sought to be by the proceedings. Upon the re-hearing the petitioner proved that except the parcel owned by him, the assessment on all the parcels which had not been paid as shown by the respondent, had been vacated. Tiie respondent showed that while the list was in the hands of the collector of assessments subsequent to the date of confirmation and prior to January 1, 1871, twenty-four parcels paid to the said collector the assessments laid upon them, amounting to $6,061.63; that thirty-one items-were returned to the bureau of arrears as unpaid, and of these there was collected prior to December 27, 1876, the date of the serving of the petition, from five parcels the sum of $405.44-; and further, that the assessments vacated were, under orders of the Supreme Court, made in the years 1871, 1872 and 1873, and that the first order, dated November 9, 1871, included twenty-two parcels. The Court of Appeals having determined that the application herein was not too late, that due regard must be had to all the circumstances, especially to such as show a change in the relative position of parties interested or affected, and it appearing that many of the parcels have been relieved from the payment of the assessment by judicial determination, and which must have rested upon tbe illegality of tbe assessment, there would seem to be no course left for this court to pursue, in justice, except to vacate tbe assessment. If it were permitted to remain, this court would be enforcing tbe payment of a tax, which it has by its solemn judgment declared to be illegal, and this it should not do: The relative position of persons interested or affected was changed decidedly by the orders mentioned, which vacated the assessment. For these reasons the order appealed from should be reversed, and the petition granted, but without costs.

Order affirmed.


author: Daniels, J.:

text:
    STEPHEN A. POTTER and others, Respondents, v. THOMAS B. McPHERSON and others, Appellants.

      United States courts have exclusive jurisdiction of actions for an infringement of a copyright— an author's property in his manuscript is lost by its publication— what combination of wo7xls will be protected as a trade-marlc — what degree of similarity must be shown to justify an injunction restraining the use of another's trade-marl,.

    The plaintiffs, and their predecessors, have, since 1863, published and offered for sale, as a system for teaching and learning penmanship, books containing the copies to be written, and also directions for learning, acquiring and practicing the said art, with such illustrations as are required to convey and explain the ideas sought to be inculcated. On the cover of each book was printed “Pnyson, Dunton & Scribner’s National System of Penmanship,” and tlie book has been called and known as the “National System of Penmanship. ”
    The defendants thereafter published a book, substantially in the same form, so far ns its general appearance, binding and color was concerned, having upon the cover the words “Independent National System of Penmanship," such words being printed in the same manner, and the letters being of the .same size and form, and occupying the same position as they do upon the cover of the plaintiffs’ book. The directions, instructions and illustrations contained in the two books were, in many cases, literally, and in the remaining cases, substantially the same. •
    On an appeal from an order restraining the defendants from publishing or selling the. said hook, or any other book representing or imitating those of the plaintiffs, and from using the words “National System of Penmanship” in connection therewith, Held, that, as to the printed instructions, the injunction could not be maintained, for the reason that, if the plaintiffs had copyrighted their book, the United States courts had exclusive jurisdiction of all actions for an infringement thereof, and that if they had not copyrighted it, they had lost their exclusive property in the said instructions and directions by publishing the same in a printed book and offering it for sale.
    That, so far as the injunction restrained the defendants from, using the words “National System of Penmanship ” in connection with their work, it was proper and should be affirmed.
    That the injunction was properly issued if it appeared that persons, desiring to purchase the plaintiffs’ publication, might well accept that of the defendants, supposing and believing it to be the plaintiffs’, even though persons engaged in the trade of buying the books, with an intention to re-sell them, might not be misled by the resemblance, and though the difference could be readily detected by. si comparison of one book with the other.
    Appeal from an order made at Special Term continuing an injunction granted herein.
    This action was brought to restrain the defendants from publishing and selling certain copy books. The complaint alleged that the plaintiffs were the owners of a trade-mark or right of property in the name “National System of Penmanship,” as applied to certain books, containing a system for teaching and learning penmanship, published and sold by'them, the specific name of their publication being “Payson, Dunton & Scribner’s National System of Penmanship.” That the defendants, McPherson & Greene, had issued one number of a copy book similar to that of the plaintiffs, and imitating it exactly in style of binding, color and ornamentation. The name of the defendants’ book differed from that of the plaintiffs’ only in the use of the word “'Independent” as a substitute for “Payson, Dunton & Scribner.”

      Artemas B. Smith, for the appellant.
    The words, “ National . System of Penmanship,” cannot be a trade-mark. No person can acquire exclusive property in the common words of language. (.Tíoylor v. Gillies, 59 N. Y., 331; Am. Trade-Mark Oases, 736; Stokes v. Landgraff\ 17 Barb., 608; Browne on Trade-Marks, §§144, 148; Carnal Co. v. Clark, 13 Wall., 311.)

      Batts, Atterbury <& Betts, for the respondents.
    The plain tiffs have a clear right of property in the words “ National System of Penmanship,” as applied to a copy or writing book; and this whether the words “ Payson, Dunton & Scribner ” are added to the said name or not. (Sebastian on Trade-Marks, 167; Matsell v. Flanagan, 2 Abb. Pr., N. S., 459; Snowden v. Noah, 1 Hopk., 355 ; Hogg v. Kerby, 8 Yes., 215; Chappel v. Shead, 2 Kay & J., 117; Messerole v. Tynberg, 36 How. Pr., 14; Congress Co. v. Highrook Co., 57 Barb., 526; Hazard v. Caswell, 57 How. Pr., 1; Newman v. AJ/oord, 6 Sickles, 189; Hiñe v. Lart, 10 Jur., 106; Taylor v. Taylor, 23 L. J., Ch. 255; Witherspoon v. Cwrrie, Law R., 5 IT. L., 508; Williams v. Johnson, 2 Bosw., 1; Williams v. Spence, 25 How. Pr., 366; Field v. Lewis, Seton, 4 ed., 237; Hurst v. Denham, Law R., 14 Eq., 542.) It is no answer for the defendants to say that they have not adopted the whole of the trade-mark of the plaintiffs; that they call their books the “ Independent National System of Penmanship,” whereas the plaintiffs’ are called “Payson, Dunton & Scribner’s National System of Penmanship.” (Clement v. Maddock, 1 Griff., 98; Mack v. Fetter, Law R., 14 Eq., 431; Gilloit v. Est&rbrook, 47 Barb., 455; 48 N. Y., 374; Braham v. Busia/rd, 9 L. T., N. S., 198; Orr v. Johnson, 27 Weekly Rep., 575.) It does not protect the defendants that the first purchasers from them would distinguish between their goods and those of the plaintiffs. The copy books are sold to wholesale buyers for the purpose of re-sale to retailers, and from them to users. (Clark v. Clark, 25 Barb., 76; Orr v. Johnson, Weekly Notes, January 31, 1880; Singer Mfg. Co. v. Wilson, 26 W. R., 664; Witherspoon v. Cwrrie, Law R., 5 H. L., 508; Edelsten v. Edelsten, De Gh, J. & S., 185; Seixo v. Provezende, Law R., 1 Ch., 192; Ford v. Foster, Law R., 7 Ch., 611.)
   Daniels, J.:

The injunction issued in this case, and continued by the order from which the appeal has been taken, restrained the defendants from publishing, selling, or exposing for sale the books referred to in the complaint, and from publishing, selling or exposing for sale any imitation of such books or pamphlets, or any books or pamphlets made to represent the books and pamphlets sold by the plaintiffs and called “ Payson, Dunton & Scribner’s National System of Penmanship,” and from using the name of “ National System of Penmanship,” in connection with books or pamphlets published or sold by tbe defendants. The books referred to in the complaint, and also in the order itself, are published as a system for teaching and learning penmanship. They contain as well the copies to be written, as detailed directions for learning, acquiring and practicing the art of penmanship, together with illustrations required to convey the ideas to be inculcated. In these respects the books published by the plaintiffs and those of the defendants are to a great extent literally the same, and where that is not their character they are substantially the same. These directions, instructions and illustrations are contained in three printed pages of the books, and so far as they extend they do not differ substantially in theory or detail from other books published for the purpose of being used in teaching the arts or sciences taught in schools. The system is as complete in itself as that which is contained in the most elaborate publications made upon other subjects, and this publication' substantially constitutes a book in and of itself. In support of the injunction restraining the defendants from publishing this book, affidavits have been presented on the part of the plaintiffs tending to show that their book had been copyrighted, but this statement has been fully controverted by the affidavits and proofs presented on the part of the defendants. It is unnecessary, in the disposition of this case, to determine which of these statements may be correct, for if the book has been copyrighted under the laws of the United States, while that would secure to the plaintiffs the right to restrain its publication by the defendants under those laws, it would not afford this court jurisdiction over the subject matter of the controversy.

The right, arising under the laws of the United States, would be one which would be within the exclusive jurisdiction of the Federal judiciary to vindicate and maintain. (Dudley v. Mayhew, 3 Comst., 9.) If it be conceded, therefore, that the jffaintiff’s book has been copyrighted, as this court has no jurisdiction over an action brought for redress, upon that ground, it could not, by means of an injunction, restrain- the defendants from making an improper publication of the plaintiffs’ work. But if, as it is contended on the part of the defendants, the fact is that the book never was regularly copyrighted, then the publication and sale of it deprived the plaintiffs of their exclusive property in its composition, for, by the common law, ■while an author has property in his manuscript, that continues only so long as it is not made the subject of publication and sale. When it becomes embodied in the usual manner in a book for general sale, and is sold indiscriminately to- all those desiring to acquire it, the author’s exclusive right of property is gone, and all other persons, after that, are at liberty to publish and sell the book. (Shook v. Daly, 49 How. Pr., 366; Palmer v. De Witt, 47 N. Y., 332.) Hntil published, the work is the private property of the author, wherever the common-law rights of authors are regarded, but when published with the assent of the author, it becomes the property of the world. (Id., 539; French v. Maguire, 55 How. Pr., 471.) The only manner in which' this result can be prevented is by the author or publisher availing himself of the rights secured by the copyright laws of the United States. Where he fails to do that, and publishes and sells his work, or permits that to be done by others with his assent, the exclusive property of the author in the publication is afterwards lost. According to these principles, which are well sustained .by the authorities, so much of the injunction ordered as restrains the defendants from publishing this book, or any imitation of any book or pamphlet representing that sold by the plaintiffs, was unauthorized, and to that extent, it must certainly be vacated. The only portion of the injunction, therefore, concerning which it can be claimed on the part of the plaintiffs that it should be continued, is that relating to the title under which the plaintiffs’ book has been published; for as to that, the law does not deprive them of their rights of property by the mere publication and sale of the book itself. That is the distinguishing incident, by which their publication becomes known in the market, and as to that they have a right to maintain the exclusive use, where it has been properly devised, for the purpose of maintaining their trade, and preventing it from being appropriated to the business of other persons. It appeal’s by the affidavits produced on the part of the plaintiffs, that the publication was commenced, certainly as early as the year 1863, and that it was then designated, in addition to the name of the composers, as their “National System of Penmanship,” and it appears to have been so continued and known from that time down to the present. This fact is not at all disproved by the evidence contained in the defendants’ papers; for while the book, in the trade, has been ordered as the book of its writers, or composers, or in some other manner, without using the controverted phrase tending more particularly to describe it, it will not follow from that circumstance, that it was not also known and distinguished by the title given to it, and printed upon its cover. The evidence on the part of the plaintiffs is that the different forms in which the book has been published have at all times been accompanied with this designation, that is, it has been called and known as the “ National System of Penmanship,” and these words, when connected with the names of the persons by whom the system was devised and composed, indicated its origin sufficiently to require their use of it to be protected under th,e laws of the State, relating to the use of trade-marks. Upon that subject, the law protects manufacturers and dealers in the use of words, phrases or other devices employed by them to distinguish their commodities from those of other dealers, when they are such as to indicate the origin or ownership of the article to which they are applied. (Farina v. Silverlock, 39 Eng. L. & Eq., 514 — where the exclusive right to use the term “eau-de-cologne” was maintained; Seixo v. Provezende, L. R., 1 Ch. App. 192; Colman v. Crump, 70 N. Y., 573 — where the use of the device of a bull’s head was sustained as a trade-mark; McLean v. Fleming, 96 U. S., 245 — which held the right to use the name of “Dr. McLean’s Liver Pills” to be one which should be protected; Newman v. Alvord, 49 Barb., 588.) The principles sustained by these and other cases, has been so far extended as to include other devices adopted for the purpose of distinguishing one person’s business and the commodities in which he may deal, from those of others. (Glen Manuf’g Co. v. Hall, 61 N. Y., 226.) And it has also been applied to the protection of the rights of the publisher in the title to newspapers, books and pamphlets. In Bell v. Locke (8 Paige, 75) its application to the publication of a competing newspaper was considered, and the injunction denied only because the title of the defendants’ paper was so clearly distinguishable from that of the plaintiff’s as not to be calculated to mislead, or deceive the public. A similar point was considered in the case of Clement v. Maddock (1 Giff., 98), where the defendant was prevented, by means of an injunction, from selling a publication bearing substantially the same title as one made by the plaintiff. In Mack v. Potter (Law R., 14 Eq., 431) the same principle also was applied. There the title of the plaintiff’s book was that of “Birthday Scriptural'Text Books,” while the defendant published his work under the title of “ Children’s Birthday Text Books,” and the latter was held to be so clearly an appropriation of the title previously applied to the publication of the plaintiff’s work as to be the proper subject of restraint, by means of an injunction. The same point was considered in Bradbury v. Dickens (21 Beav., 53), where it was held that the title of “Household Words” given to a magazine was property, and for that reason the subject of a s:le, under an order of the Court of Chancery. While, therefore, the plaintiffs’ book itself may be published in case it has not been copyrighted— which is a subject'over which this court has no jurisdiction — the title given to it cannot be appropriated, and used by the defendants. That they have used the same title has been denied by the defendants, but it is very evident from the affidavits read on the part of the plaintiffs, and the books themselves, that they are not correct in this denial. An inspection of the books discloses the facts that they are published substantially in the same form so far as general appearance, binding, and color of the covers are concerned; and upon the cover of the defendants’ book the phrase “National System of Penmanship,” which has long been the title of the plaintiffs’ publication, is printed in the same manner, the same size and forms of letters, and occupying the same position as they do upon the cover of the plaintiffs’ book. The resemblance of the words and letters composing this phrase is as complete as it could well be made, and from the identity of the contents of the books, their size, and general appearance, the conclusion seems to be well warranted, that they could not in that manner have found their place upon the defendants’ book, unless it was the -result of design upon their part to imitate the plaintiffs’ book. They have claimed that even if this were so that the difference between the title-page of their book, and that of the plaintiffs, is such as to prevent the use of this descriptive phrase from misleading purchasers, and it is conceded by the plaintiffs that that would be the case as to persons engaged in the trade and purchasing books, for the purpose of afterwards selling them. But that the one would not be readily purchased as the publication of the other by a person buying the work for use, is denied, and the contrary of this is asserted to be the truth. In order to render it necessary that a publication or imitation of this nature should be restrained, it is sufficient that persons who may desire to purchase the plaintiffs’ publication, might very well accept that of the defendants, supposing and believing it to be the same. That the difference might be readily detected by a comparison of one book with the other, is not sufficient to allow the defendants to appropriate and use the plaintiffs’ title. If in its use, persons under ordinary circumstances, desiring to purchase one, would receive the other in its place, believing that they had obtained the work intended to be bought, that will not only justify, but require the court to interfere, for the purpose of preventing the use of the plaintiffs’ title. This has been the principle by which the courts have been governed in imposing restraints of this nature, and it is well sustained by the authorities already referred to, and also by the cases of Williams v. Johnson (2 Bos. 1), and Falkinburg v. Lucy (Cox Am. Tradem. Cas., 449). Two of the defendants were in the employment of the plaintiffs, before they commenced business for themselves. In the course of that employment, they acquired a minute knowledge of the plaintiffs’ business, including the extent and advantages of their sales of the book now in controversy. And when they applied to the imitation of the one published and sold by themselves, the name by which the plaintiffs’ book had become extensively known in the market, it is to be inferred that it was done for the purpose of promoting their own interests, by inducing purchasers to believe, that their article was the same as that they had previously been accustomed to buy. It could not have been transcribed from one to the other, by the same type, in the same form, and occupying the same relative position on the page, without design on the part of the defendants, and it is not reasonable to suppose that this design was either formed or executed without the expectation that they would derive advantage from the resemblance which it would give their book to that of the plaintiffs. It is claimed by the defendants that this designation was of no value to the book, and that its omission would not have affected their sale. If that were the case, then why should this apparent effort have been made, to place the title of the one upon that of the other, in the identical manner in which it had so long been used by the plaintiffs ? The fact itself, that it has been so used, is at variance with the truth of this statement. Where such a simulated resemblance is found in the title made use of by one person to that previously used by another, long engaged in the same business, the inference is just and natural that the motive for doing so is to acquire improperly the patronage and trade of the other, and no reason exists for excluding this case from the control of that jiresumption. The law does not allow one person in that manner to acquire the advantages in trade which may have been secured by the efforts and reputation of another, previously engaged in the same line of business. On the contrary, it will protect the party whose wares, commodities, or publications have become identified in the market, under any appropriate symbol, words, phráses or devices, from the appropriation and use of them by other and competing dealers, in the same description of property. It has been urged that the phrase “National System of Penmanship ” could not be so exclusively appropriated by the plaintiffs and their predecessors, and the cases of Taylor v. Gillies (59 N. Y., 231), where it was held that the phrase “ Gold Medal ” could not be so appropriated; and Canal Co. v. Clark (13 Wall., 311), holding that the phrase, “ Lackawanna coal ” could not be exclusively used by one party so as to deprive another obtaining coal in the same nominal locality from making use of it, have been relied upon in support of this position. But they are manifestly different in their circumstances from the case which the court is now required to decide. The phrase made use of by the plaintiffs is a combination of words not otherwise employed in this trade, and which appropriately express the publication made by them. Within the authorities already referred to, they are entitled to be protected in its enjoyment and use against the defendants in this case; and while the injunction, in other respects, should be vacated, so far as the use of the phrase “ National System of Penmanship ” is restrained, it should - be sustained.

Davis, P, J., and Barrett, J., concurred.

Order modified.


text:
    ROBERT J. ANDERSON, Respondent, v. HENRY S. SPEERS, Appellant.

      Action to charge a trustee assenting to a company’s contracting debts in excess of its capital stoch — by whom it must be brought — how the extent of each creditor’s recovery is limited— Oh. 40 of 1848, § 23.
    Under section 23 of chapter 40 of 1848, providing that, “If the indebtedness of any such company shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of the company,” one creditor cannot, in case the debts exceed the amount of the capital stock, maintain an action at law against an assenting trustee to recover the amouut of his debt.
    An action thereunder can only be brought by all the creditors jointly, or by one creditor in behalf of himself and all the other creditors of the company. In such an action each creditor can only recover such aproportion of the excess of tlie debts over the amouut of the capital stock as his debt bears to the whole amouut of the debts of the company.
    Appeal by the defendant from a judgment entered upon an order overruling a demurrer interposed by Mm to tbe third cause of action set forth in tbe amended complaint.
    Tbe plaintiff, in tbe cause of action demurred to, sought to charge the defendant, as a trustee of the American Shovel Company, on tbe ground that he had, while acting as such trustee, allowed the indebtedness of the said company to exceed the capital stock thereof by tlie sum of $38,629.30. • The section of the Manufacturing Act (section 23 of chapter 40 of 1848) under which the action was brought, is as follows: “If the indebtedness of any such company shall at auy time exceed the amount of its capital stock, the trustees of such company assentiug thereto shall be personally and individually liable for such excess to the creditors of the company.”
    . The defendant demurred to the said third cause of action, upon the ground that it appeared upon the face of the complaint that there was a defect of parties, in that there was an omission to join either as parties plaintiff or defendant the other creditors of the company.

      Michael H. Gcurdozo, for the appellant.

      W. W. Wües, for the respondent.
   Daniels, J.:

That part of the complaint demurred to in this case sets forth the facts that the American Shovel Company, of which the defendant was one of the trustees, with his assent contracted debts in excess of its capital, to the amount of $38,629.30. The indebtedness of the plaintiff, together with interest and expenses, was near the sum of $7,000, which left the residue of about $30,000, for which the defendant would be still liable, after the payment of the plaintiff’s demands, to the other creditors of the corporation, and it was for the non-joinder of these creditors, as parties to the action, or the failure of the plaintiff to bring the action in his own behalf and on behalf of the other creditors of the corporation, that the demurrer was interposed. It was held, at the Special Term, that it was unnecessary for the plaintiff to bring his action in either of the forms indicated, and whether that determination was right or not, is the point upon which the disposition of this appeal depends.

The statute applicable to the case provides that if the indebtedness of the company shall at any time exceed the amount of its capital stock, its trustees assenting thereto shall be personally and individually liable for the excess to the creditors of the company. (2 R. S., 6 ed., 508, § 58.) The provision upon this subject is literally the same as that contained in an act of Congress, relating to similar corporations formed in the District of Columbia (16 IT. S. Stat. at L., p. 102, 1870, ch. 80, § é), under which it has been held that an individual creditor#of the company cannot maintain an action in his own behalf for the recovery of his own debt against the officers assenting to the unlawful increase of the company’s indebtedness. (Hornor v. Henning, 93 U. S., 228.) A provision precisely the same is contained in the laws of the State of Illinois (R. S. of 111., 228), and under that it has also been held that an action by one creditor, on his own behalf alone, cannot be sustained. (Buchannan v. Barto Iron Co., 3 Bradw., 191.) A similar point has also been decided in the State of Massachusetts in the case of Merchants' Bank of Newburyport v. Stevenson (10 Gray, 232). The statute which was the subject of construction in the last case, was much more favorable than either of these other acts to the right of one creditor to maintain an action simply for the recovery of his own debt, but the court felt hself controlled in the construction 'which was given to it, by other provisions of the act, and held that die other creditors of the company should be made parties, either directly or theoretically, and that an action in equity alone could be maintained. In this respect the decision was the same as that made in the case of Hornor v. Henning, supra. It has been urged in support of the plaintiffs action that a different rule of construction has been adopted by the authorities existing in this State. But no case has been cited, neither has any been discovered, in which an action in this form has been held proper under the section of the statute already mentione 1. The cases relied upon have all arisen under other provisions oí the same, or other statutes which, by their terms, render the officers and stockholders in default jointly and severally liable for all the debts of the company. This is the case as to the trustees who may fail to make and publish the annual report required, or who may declare a dividend when the company is insolvent, or which, of itself, would render it insolvent, or diminish its capital stock, or for making a report which shall be false in any of its material representations. (2 R. S., 6 ed., 506, 507, §§ 47, 48, 50.) The provision is in form the same which declares the liability of stockholders for the debts and contracts of the company previous to the full payment of its capital stock, and to laborers, servants and apprentices, for services performed for the company. (Id., 504, § 38; 507, § 53.) There is a very evident distinction between these several provisions, and the one-upon which this action has been predicated, for, as they render the stockholders and trustees, in the cases provided for, jointly and severally liable for all the debts of the company at the time existing, there can be no impropriety in allowing each one of the creditors to maintain an action, in his own behalf, for the recovery of the debt due to himself. The liability provided for by these sections is several and individual in its character, including all the debts owing at the time by the company. For that reason no. special necessity can exist for requiring other creditors to- be joined, but each may properly prosecute an action for the recovery of the amount due to himself; no injustice can result from proceeding in that manner, where the persons proceeded against are liable for all the existing debts of the corporation, and for that reason it has been held, that the action may be maintained under provisions of this nature, by each creditor in his own behalf. (Bank of Poughkeepsie v. Ibbotson, 24 Wend., 473; Van Hook v. Whitlock, 3 Paige, 409 ; Burr v. Wilcox, 22 N. Y., 551; Shellington v. Howland, 53 Id., 371; Boynton v. Hatch, 47 Id., 225 ; Garrison v. Howe, 17 Id., 458; Mathez v. Neidig, 72 Id., 100.) These were all actions against stockholders, either under the provisions of this statute or others of a similar nature, and it was held that each creditor might prosecute the stockholder liable for himself, individually.

Wiles v. Suydam (10 Hun, 578), has been especially relied upon as an authority supporting the action brought by the plaintiff in this instance. But as it was against the defendant as a trustee, to enforce the liability created by the Omission to make the annual report required by the statute, it can afford the plaintiff no assistance; for, as it has already been stated, the trustees for such an omission are liable for all the debts of the company then existing, or contracted before the report may be made.

The cases of Chambers v. Lewis (28 N. Y., 454), and Jones v. Barlow (62 Id., 202) were also dependent upon the same provission; and for that reason do not sustain the cause of action assailed by this demurrer. The provision of the statute which has been set forth and on which this action depends does not render the trustees assenting to the unlawful increase of the company’s indebtedness liable for all the debts of the corporation, as these other provisions have done, but it has declared them liable only to the extent of the excess of the indebtedness over the amount of the capital stock of the company, and then not to the creditors individually, but in terms to the creditors of the company collectively, and as a mass. The provisions are clearly distinguishable, both in their terms and in their effect. One class includes all the debts existing against the company, while the other, by its terms, substantially creates a fund to the extent only of the unlawful excess of indebtedness, in the distribution of which all the creditors are ratably entitled to participate. An action brought in any form under this provision will require an accounting for the purpose of ascertaining who may be the creditors of the company, and to what extent it may be indebted to each individual, and for the purpose also of discovering what may be the excess of indebtedness beyond the amount of the capital stock, and the ratable manner in which it should be distributed among such creditors. Whether the action may be brought by one person, or by all the creditors together, or by one on behalf of himself and the other creditors of the company, the proceeding must be substantially the same, for no individual creditor can recover more than the proportionate amount of the excess of the indebtedness applicable to his own debt. In any event, a full investigation and accounting will be necessary to determine the rights of the parties. For these reasons, the authorities, construing a similar provision existing in other States, and in the District of Columbia, should be followed in the disposition of this appeal. That may be properly done, because they in no manner conflict with the cases already decided by the courts of this State, and they seem to be well sustained, in the principle maintained by them, by the peculiar language of this section of the statute.

The judgment should, accordingly, be reversed, and an order entered sustaining the defendant’s demurrer, with leave to the plaintiff to amend in twenty days, on the usual terms.

Davis, P. J., and Barrett, J., concurred.

Judgment reversed; order entered sustaining demurrer, with leave to plaintiff to amend in twenty days, on the usual terms.


author: Barrett, J:;

text:
    ALBERT LEFLER, Appellant, v. ISAAC SHERWOOD, Respondent.

      When a pleading should he amended to conform to the proofs — 0ode of Oivil Procedure, §§ 539, 5.40, 722, 723.
    Appeal from a judgment in favor of the defendant, entered upon a dismissal of the plaintiff’s complaint at a Circuit. The complaint alleged:
    “ That during the month of September, 1877, he was a surgeon-dentist, doing business in the city of New York, and engaged in the manufacture of teeth, etc. During said month defendant employed plaintiff to manufacture for him, said defendant, a set of teeth, and agreed to pay plaintiff therefor the sum of $70 upon the completion thereof. That pursnant to such employment and agreement, the plaintiff did manufacture for defendant such set of teeth, and tendered and offered them to defendant, and demanded pay therefor, all of which defendant declined and refused, to the damage of the plaintiff of the sum of $70. Wherefore plaintiff demands judgment against the defendant, for the sum of $70, together with the costs of this action.”
    The court, at (General Term, said: “ The action was not, as the respondent insists, for goods sold and delivered. It was upon contract to manufacture a set of teeth for a specific price. The plaintiff proved the manufacture (almost complete) of the teeth according to his contract. All that was necessary to finish the job was the presence of the defendant in the plaintiff’s office for the purpose of fitting the teeth properly in the mouth. The defendant repeatedly promised to call, but invariably failed to do so. The evidence tended to sluw that his conduct was willful. Upon this state of facts, there was no reason for a nonsuit. The plaintiff did all that lie was bound to or could do, and the defendant was liable for such jiroper damages as resulted from the breach. The form of the complaint did not stand in the way. It is framed upon the theory of substantial completion. But under the present system, a party is not to be turned out of court, because he proceeds on that basis for the contract price, instead of for damages by reason of the breach. The pleadings should, if necessary, have been amended or conformed to the proof, — for the defendant could neither have been surprised, misled nor prejudiced thereby — and the case submitted to the jury upon the facts adduced. (Code of Civ. Pro., §§ 539, 540, 722, 723.)”

      Edward Gebhm'd, for the appellant.

      T. Frank Brownell, for the respondent.
   Opinion by

Barrett, J:;

Davis, P. J., concurred.

Present — Davis, P. J., and Barrett, J.

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


author: Barrett, J.;

text:
    THOMAS W. EVANS and others, Respondents, v. GEORGE W. WARNER, Appellant.

      When the threat of a debtor that he will malee a preferential assignment, fur-■v nishes no ground for the issue of an attachment.

    Appeal from an order denying a motion to vacate an attachment. The action was brought to recover goods sold to the defendant by the plaintiffs between September 17, 1879, and October 29, 1879. The affidavit upon which the attachment was granted, stated, among other things, “ That in the month of September, 1879, at the time defendant applied to deponent’s firm to sell him goods on credit, he represented to deponent’s said firm, that he was perfectly solvent, and able to pay all his debts in full, and that he had at said time a surplus capital ip his business of from seven to eight thousand dollars, and was doing a good paying business. That on March 96, 1880, one Charles L. Seaver called upon deponent, and stated to deponent that he represented the defendant, and was sent by the said defendant to see the deponent’s firm in regard to the claim held by deponent’s firm against said defendant, and thereupon the said Seaver stated to deponent that the said defendant deshed him, the said Seaver, to effect a compromise with deponent’s firm, of the claim out of which this action arises; and then and there submitted an offer in behalf of defendant, of thirty cents on the dollar. That deponent refused said offer, stating that said defendant had, in September, made a statement to his said firm, which statement, if true when made, would show that defendant was not compelled to compromise his debts, but was abundantly able to pay them in full. That said Seaver thereupon stated that unless deponent’s firm would accept said offer of compromise, that he would immediately notify the defendant of such refusal; and that the defendant would thereupon at once make an assignment of all his property, the result of which would be that deponent’s film would not even obtain the amount of compromise offered, for the reason that defendant owed about $4,000 for borrowed money, • which defendant would protect. .Deponent therefore charges that defendant is about to assign and dispose of his property, with intent, to defraud the plaintiffs herein, and his other creditors.”
    The court at General Term said : “ It is impossible to uphold this attachment. There is not a particle of evidence that the person' who made the statements upon wdiicli the charge of fraud is predicated, was connected with the defendant or authorized to speak for him. The statements, therefore, were mere heresay. But further, such statements were intrinsically innocent. The defendant had a legal right to make a preferential assignment. There was no threat to malee a fraudulent assignment, nor, consequently, to cheat and defraud. The statement was simply an opinion as to the- natural and probable consequence of a legitimate act, put forward to induce the plaintiffs to accept a compromise.”

      Bartlett db Bartlett, for the appellant.

      Jno. J. Adams, for the respondents.
   Opinion by

Barrett, J.;

Davis, P. J., concurred.

Present — -Davis, P. J., and Barrett, J.

Order reversed, with $10 costs, and disbursements. Motion to vacate attachment granted.


author: Per Curiam.

text:
    ARCHIBALD B. GWATHNEY, Respondent, v. BENJAMIN E. CHEATHAM, Appellant.

      Discontinuance, of action — when not allowed against the ohjecMon of a defendant who has interposed a counter-claim.

    Appeal from an order made at a Special Term, allowing a discontinuance of the Action without costs.
    -The court, at General Term, said: “ The defendants in this action, by their answer, set up a valid counter-claim, on which, on proof of the allegations of the auswer, they would be entitled to recover against the plaintiffs. Upon that counter-claim, issue has been properly joined. It was insisted in the court below, and is also insisted here, that the defendants had the right to proceed with the action, for the purpose of trying the issue joined upon that counterclaim, independently of the question whether the plaintiff chose to maintain his cause of action or not. This proposition seems to us, in this case, to' be" a sound one, and to be supported by authority. {Livermore v. Bainbridge, 43 How. Pr., 273; F’acific Mail v. Puling, 7 Abb. New Cas., 37 ; Wilder v. Boynton, 63 Barb., 547.) The only ground alleged by the plaintiff for discontinuance, is the insolvency of the defendants. This insolvency has not been established in the usual form, by a discharge in bankruptcy, or under the insolvent laws of the State. It is merely alleged that the defendants have become unable to pay a judgment in favor of the plaintiff, if recovered, and for that reason the plaintiff asks to be allowed to discontinue without' costs. Under the circumstances of the case, we think the request should not have been allowed, inasmuch as the defendants still insist upon their counter-claim, and the right to proceed and recover it in this action. Without, therefore, determining to what extent the attorney’s lien, under section 66 of the Code, should interfere to prevent the settlement of this action, we think, upon the established rule governing cases of this kind, the order was improvident, and ought not to have been made.”

      O. J. Wells, for the appellant.

      Thomas G. Shearman, for the respondent.
   Opinion

Per Curiam.

Present — Davis, P. J., and Barrett, J.

Order reversed, with $10 costs, and disbursements, and motion denied.


author: Davis, P. J.;

text:
    RUDOLPH LEXOW, Appellant, v. JAMES JULIAN, Respondent.

      An erroneous statement as to whether or not a certain debt is a lien upon a specified security is not a misi-epresentationfor which an action will lie — nor is a promise todo some future act one — all pirior promises, are merged in the final written agreement.

    Appeal from a judgment in favor of the defendant entered on a dismissal of the complaint ordered at the Circuit.
    This' action wras brought to recover damages for alleged fraudulent misrepresentations, by which the plaintiff was induced to consent to the settlement and discontinuance of an action which he had brought in the Court of Common Pleas, as a broker, for an indebtedness contracted in a fiduciary capacity, and in which action the plaintiff liad caused the defendant to be arrested. Tho agreement for the settlement and discontinuance of the action in the Common Pleas was in writing, expressing the consideration for which the same was made, which was, in substance, the payment of $500 and the giving of four promissory notes payable at future periods. The defendant, was, at that time, a member of the Board of Stockbrokers, and the owner of a seat in the Stock Exchange. The alleged fraudulent misrepresentations consisted in statements and promises made at the time.of the settlement, to the effect that his indebtedness to the plaintiff was a lien upon his seat in the Stock Exchange, and that he could not and'wmuld not sell the same without paying the indebtedness to the plaintiff. Nothing of this kind was contained in the written agreement, but the statement and promises were oral and were claimed to have ■ been the inducements to the making of the agreement.
    The Court at General Term said : “Upon what precise ground the court below dismissed the complaint does not distinctly appear, but, it seems to us, that the representations and promise were not a sufficient basis for an action for fraud. . The representation that the plaintiff’s indebtedness was, or would be, a lien upon the seat in the Stock Exchange, could, at most, be regarded as nothing more than the expression of an opinion as to the right the plaintiff would have, as a matter of law, to a lien upon the seat. The opinion was doubtless a mistaken one, and the plaintiff had every requisite facility to ascertain whether it was sound in law and fact or not. And if he accepted the opinion of the defendant upon such a subject, he is not and ought hot to be permitted to allege that the assertion of the opinion wras a fraudulent representation, by which he was deceived. If A. be indebted to B. in a sum of money for which an action is pending, the assertion of A. that the debt is a lien upon any specific property or thing, made as an inducement to the settlement, is not in itself such a representation of an existing fact as the law requires as a sufficient ground for an action for deceit.
    ' “ The further statement of the defendant that he could not and would not dispose of the seat without providing for the plaintiff’s indebtedness, cannot, we think, have any other constmctiun than a mere promise not to do something in future in respect to the seat. As snch promise, it cannot be regarded as a fraudulent representation of an existing fact, and, regarded as a mere promise, it could not be the basis of an action for its non-performance, because not embodied in the written instrument into which the parties entered for the settlement of existing litigation. We think that the court below properly disposed of the case by the dismissal of the complaint.”

      Charles Wehle, for the appellant.

      G. /S. Vim Pelt, for the respondent.
   Opinion by

Davis, P. J.;

Barrett, J., concurred.

Present — Davis, P. J., and Barrett, J.

Judgment affirmed.


author: Pee Curiam.

text:
    In the Matter of the Petition of JOSHUA C. SAUNDERS, to Vacate certain Sales for the Non-payment of Assessments.

      Application to vacate an assessment sale — when denied., for laches of the petitioner.

    Appeal from an order denying an application to vacate certain sales of lands, for non-payment of assessments thereon, on the ground of irregularity.
    The court, at General Term, said: “ The petitioner became the owner of the premises affected by tlie sales to which the petition related, in 1870. This application, in regard to them, was made in /December, 1879, and he had been in possession of them four years, prior to January 2, 1880. The assessments were respectively laid in 1853, 1854 and 1856, and tlie sales for the non-payment of the assessments were in 1860, 1862 and 1863. The purchase off the petitioner, as suggested by the counsel for the respondent, was, therefore, ten, eight and seven years respectively after the sale. Under the circumstances, therefore, which mark this application, tlie suggestions of the counsel for the respondents, namely, that if the petitioner exercised ordinary care in making the purchase he knew of the sales and the liens thereby created, and has not, by any evidence, rebutted the presumption that, for those liens, he was reimbursed or in some way indemnified by his vendors, lias great force. If any allowance were made to him on the purchase of the property in consequence of these liens, either by diminution of the price, which would otherwise be demanded for them, or in any other mode, he would not be a party aggrieved, which is a necessary element in proceedings of this character, the development of which should be exacted when the application is distinguished by the long delay which marks this. We are not furnished' with the reasons why it was denied in the court below, but assume that it was on account of the laches to which reference has been made. The order should, therefore, be affirmed without prejudice to another application, with $10 costs of the appeal, and disbursements.”

      Moody B. Smith, for the appellant.

      J. A. Beall, for the respondent.
   Opinion

Pee Curiam.

Present — Davis, P. J., Brady and Barrett, J7T.

Order affirmed, with $10 costs, and disbursements.


text:
    SAMUEL V. HOFFMAN, Respondent, v. MICHAEL K. BURKE and others, Appellants.
    (Case No. 1.)

      Resale of premises in action of foreclosure under order directing a sale in parcels — notice need not state that the land will he sold in parcels — Rule 66.
    Appeal from an order of the Special Term, denying a motion to vacate a sale of the mortgaged premises, made under the judgment entered herein.
    The court at General Term said.: “ A resale of the mortgaged premises in separate parcels was directed by this court upon a previous appeal. Such resale followed, and it was made in separate parcels, conformably to our direction. The defendant now insists, that the proposed sale in parcels should have been stated in the advertised notice, and, because of its omission, he again claims a resale. The objection is untenable. The notice of sale properly followed the terms of the decree. It was correct and ordinary practice to take the description therefrom. The form of the advertisement was not notice that the property would be sold in bulk. It was simply notice, as required by law, that the premises described in the judgment would be sold. But how, whether in block or in parcels, wras left for further inquiry. Such would be the natural conclusion of any person attracted, by the advertisement. He w’ould not expect to find particulars in the formal notice of sale. He would no more look there for information as to the order or manner, than as to the terms of sale. He wrould know that all such details depended either upon the special direction of the court, or upon the sound judgment of the sheriff or referee (Rule 66), and he would pursue his inquiries accordingly. Further, if in the present instance the defendant desired the manner of sale to be specified in the notice, he should have made his request in due season. Instead of doing so, he w'aited until the day before the sales and then served a notice which was plainly intended either again to delay the plaintiff, or to serve as the basis of amotion for a resale.”

      William IT. JVewmcm, for the appellant.

      Wheeler H. Peekhami, for the respondent.
   Opinion by

Barrett, J.;

Davis, P. J., and Brady, J., concurred.

Order affirmed, with $10 costs,.and disbursements.


text:
    In the Matter of the Petition of RALPH MARSH, to Vacate an Assessment.

      What assessments are validated by the certificate of the comissioners acting under chapter 080 of 1872 — advertisement for proposals — what provisions in do not render a contract invalid — what not a '■‘■substantial error."

    Appeal by the Mayor, &c., of the city of New York, from an order of the Special Term, Aracating an assessment for tlie regulating aud grading of Ninety-sixth street from Second to Fifth avenues.
    The petitioner alleged that the contract for the work in question was not given out to the lowest bidder, as required by law. The notice to the contractor contained this clause: “ Bidders will state in their proposals the price for excavating rock per cubic yard (one-fourth the price bid for rock excavation will be allowed as the price for earth excavation per cubic yard).” When the bids Avere opened, it Avas found that there were fourteen bidders for the Avork in question, as appears from the memorandum of bids. Patrick Farley Avas the lowest bidder for the Avork; his bid ivas rejected by the Commissioner of Public Works, on the ground that he had bid for earth excavation more than one-fourth the price lie bid for rock excavation, and a memorandum to that effect was made at the foot of Farley’s bid. The contract in question came .before the contract commissioners appointed by chapter 580 of the Laivs of 1872, and was certified by them to be free from fraud, as appears by the certificate of the Comptroller, dated March 9, 1876. The work itself was completed, as appears by the certificate of the inspectors, in January, 1876.
    The court, at General Term, said: “ This assessment was validated by the certificate of the commissioners under the act of 1872 (ch. 580). It is not a case of fraud or repavement. Consequently the decision In re Astor (53 R. Y., 617) docs not apply. It is, liOAvever, directly within the principle of In re Peuynet (5 Ilun, 434). The opinion in this case Avas prepared by Mr. Justice Daniels, and his views upon the point in question were subsequently adopted by the Court of Appeals (67 N. Y., 441). But further, we do not think that the irregularity complained of amounted to a ‘substantial error,’ by which the petitioner can be said to be ‘aggrieved.’ The commissioner’s invitation for bids, upon the alleged defect in which the petitioner’s case rests, was not an evasion of the statutes. It was rather calculated to prevent evasion. The particular clause wdiich the petitioner, criticises, viz.: ‘ onefourtli the price bid for rock excavation will be allowed as the price for excavation per cubic yard,’ was undoubtedly formulated with a view to secure the really, rather than the apparently, lowest bidder. Such, too, seems to have been its practical effect, as the work was done for less than the lowest competitive offer.”

      Frcmois Lynda Stetson, for the appellant.

      John G. Sham, for the respondent.
   Opinion by

Barrett, J.;

Davis, P. J., and Ingalls, J., concurred.

Order reversed.


text:
    ABBEY L. COOK, as Executrix, etc., Appellant, v. THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, Impleaded with others, Respondent.
   Order affirmed, with $10 costs, and disbursements.


text:
    MILO HUNT and CALEB M. HOLBROOK, Respondents, v. THOMAS M. KEELY, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    JOHN D. JONES and JULIUS E. HINTZ, Respondents, v. JOHN H. TIENKEN, Appellant.
   Order modified, as directed in opinion, without costs to either party.

Opinion

Per Curiam.


author: Yan Yorst, J.

text:
    GEORGE G. TARBELL, Appellant, v. JOSEPH J. WEST and others, Respondents.
   Judgment affirmed, on opinion of

Yan Yorst, J.


author: Barrett, J.

text:
    CHARLES A. SCHLEGEL, Respondent, v. ANTHONY EURING, Appellant, Impleaded with others.
   Order affirmed, with $10 costs and disbursements.

Opinion by

Barrett, J.


text:
    JOHN H. BEWLEY and MARIETTE BEWLEY, Appellants, v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES and others, Respondents.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Barrett, J.


text:
    ANN M. SHAW, Respondent, v. ELIZA W. NILES, Appellant, Impleaded, etc.
   Judgment and order affirmed, with costs.

Opinion

Per Curiam.


text:
    JOSEPH SPEARS and WILLIAM C. SPEARS, Respondents, v. THE MAYOR, &c. OF NEW YORK, EZEKIEL E. THOMPSON and JOHN MATHEWS, Appellants.
   Judgment affirmed.

Opinion

Per Curiam.


text:
    RICHARD SCHELL, Respondent, v. JEREMIAH DEVLIN and others, Executors, etc., Appellants.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Barrett, J.


text:
    WALTER W. BARKER, Appellant, v. EDWARD P. WILDER, Respondent.
   Order affirmed, with $10 costs, and disbursements.

Opinion

Per Curiam.


text:
    SAMUEL B. SMITH, Appellant, v. EDWARD B. DORSEY, Respondent.
   Order affirmed, with $10 costs, and disbursements..

Opinion by

Barrett, J.


author: Daniels, J.

text:
    In the Matter of the Application of LE ROY B. CRANE, for the Appointment of a new Trustee, etc.
   Orders reversed; order to be entered denying motion for appointment of trustee.

Opinion per

Daniels, J.


text:
    HENRY M. WHITEHEAD, Respondent, v. ANDREW KENNEDY, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Barrett, J.


text:
    EVARISTO LLORENS, Appellant, v. JACINTO COSTA, Respondent, Impleaded, etc.
   Judgment reversed; new trial ordered; costs to abide event.

Opinion

Per Curiam.


text:
    JACINTO COSTA, Appellant, v. EVARISTO LLORENS and others, Respondents.
   Judgment affirmed, without costs, on defendant’s stipulating as directed in opinion.

Opinion by

Barrett, J.


text:
    HARRIETTE S. WEAVER, Appellant, v. BERNARD REILLY, Respondent.
   Judgment reversed ; new trial ordered ; costs to abide event.'

Opinion by

Daniels, J.


author: Davis, P. J.

text:
    JOHN BREWI and GEORGE HOFEMANN, Respondents, v. PHILIP PEFEFFER, Appellant.
   Order affirmed.

Opinion by

Davis, P. J.


text:
    THE GERMANIA SAVINGS BANK v. CATHERINE MULLER.
   Order reversed.

Opinion

Per Curiam.


text:
    In the Matter of the Petition of BENJAMIN W. MERRIAM, to Vacate an Assessment.
   Order affirmed.

Opinion by

Barrett, J.


text:
    In the Matter of AARON RAYMOND.
   Re-argument ordered.


text:
    GEORGE W. MILLER v. ALWINE C. McCLAVE.
   Motion for re-argument denied.


text:
    EUGENE N. ELIOT v. WILLIAM H. KING.
   Motion for re-argument denied.


text:
    DANIEL T. DINAN v. JULIA ALLEN.
   Motion denied, without prejudice to its renewal on the bearing of tbe appeal from tbe order.


author: Brady, J.

text:
    WILLIAM M. RICE and JOHN BURNETT, Respondents, v. HENRY A. TILDEN, Appellant.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    JACOB MACK and ALEXANDER MACK, Respondents, v. JACOB COHN, Appellant, Impleaded with ELKIN HYMAN and another.
   Judgment reversed ; new trial ordered; costs to abide event.

Opinion by

Brady, J.


text:
    WILLIAM P. EARLE, Respondent, v. WILLIAM A. HAMMOND, Appellant, Impleaded with others.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Barrett, J.;

Davis, P. J., taking no part.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, v. ANDREW CROUSE.
   Judgment reversed.

Opinion by

Brady, J.


text:
    In the Matter of WILLIAM AUSTIN, to Vacate sales for Assessments.
   Order affirmed.

Opinion

Per Curiam.


author: Brady, J.,

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JACOB A. HATZEL, Appellant, v. MICHAEL W. BURNS and others, as the BOARD OF ALDERMEN IN AND FOR THE CITY AND COUNTY OF NEW YORK FOR THE YEAR 1879, Respondents.
   Order reversed.

Opinions by

Brady, J.,

Davis, P. J., and Barrett, J.


text:
    ANDREW J. PERRY, Respondent, v. TRUE W. ROLLINS, Appellant.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    HANNAH O’BRIEN, Respondent, v. E. H. WATTS, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    JOHN S. GILES, Trustee, etc., Appellant, v. JERUSHA GOODALL and others, Respondents.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Barrett, J.


text:
    In the Matter of the Petition of DANIEL R. KENDALL, Respondent, to Vacate an Assessment. SAME v. SAME.
   Oral argument ordered at the October Term.


text:
    WILLIAM D. ELGER, Respondent, v. EDWARD KANE, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, v. THE CENTRAL CROSS-TOWN RAILROAD COMPANY, OF NEW YORK.
   Motion to dismiss ajipeal from judgment, with $10 costs, granted.

Opinion by

Davis, P. J.


text:
    WILLIAM RAYNOR, Appellant, v. EMILY M. RANDALL, Respondent.
   Judgment affirmed, with costs.

Opinion by

Barrett, J.


text:
    AUGUSTA C. GENET, Appellant, v. THE PRESIDENT, MANAGERS, AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondents.
   Judgment modified, as directed in opinion.

Opinion by

Barrett, J.


text:
    CHARLES B. BROECK and WILLIAM G. PENNYPACKER, Respondents, v. JAMES EVERARD, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Barrett, J.


text:
    JOHN S. PROUTY, Appellant, v. RODNEY M. WHIPPLE, Respondent.
   Judgment reversed, with costs.

Opinion by

Davis, P. J.


author: Ingalls, J.

text:
    GEORGE M. DORRANCE, Assignee of GEORGE D. BAYAUD, Appellant, v. GEORGE GARRISON, Respondent.
   Order modified, as directed in opinion.

Opinion by

Ingalls, J.


text:
    THE CONTINENTAL NATIONAL BANK OF NEW YORK, Respondent, v. JOHN B. HASKIN, Appellant, with JOHN R. FELLOWS.
   Judgment affirmed.

Opinion by

Ingalls, J.


text:
    THOMAS S. GRIMWOOD, Respondent, v. HENRY ERBEN, Appellant.
   Judgment affirmed, with costs.

Opinion by

Ingalls, J.


text:
    FREDERICK BEDFORD, as Executor, etc., v. THOMAS C. FIELDS and others, Respondent. MILN P. PALMER, Purchaser, Appellant.
   Order affirmed.

Opinion by

Ingalls, J.


text:
    THE CONTINENTAL BANK OF NEW YORK, Respondent, v. WILLIAM E. TOWNSEND, Appellant, Impleaded, etc.
   Judgment affirmed.

Opinion by

Ingalls, J.


text:
    WILLIAM POWELL, Respondent, v. JOHN D. TRACY and ELIZABETH TRACY, Appellants, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Ingalls, J.


author: Ingalls, J,

text:
    FANNIE M. ROBINSON and others, Trustees, etc., Respondents, v. THE CHEMICAL NATIONAL BANK OF NEW YORK, Appellant.
   Judgment affirmed.

Opinion by

Ingalls, J,


text:
    THOMAS H. WALTER and HARRIET A. WALTER, Executrix and Trustee, etc., Respondents, v. JONATHAN O. FOWLER, Appellant.
   Order affirmed, with $10 costs, and disbursements.

Opinion by

Ingalls, J.


author: Ingalls, J.,

text:
    THE PATENT ELASTIC FELT COMPANY, Appellant, v. FRANCIS B. SPENCER, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinions by

Ingalls, J.,

Davis, P. J., and Barrett, J.


text:
    THEODORE LEON, Appellant, v. LEOPOLD BERNHEIMER, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Brady, J.


text:
    SAMUEL G. CORLIES, Appellant, v. ROBERT E. FERGUSON, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Barrett, J.


text:
    CHRISTINA R. BROWN v. MARTIN SCHOONMAKER.
   Reargument denied.

Opinion by

Ingalls, J.


text:
    In the Matter of JOHN H. SCREVEN, to Vacate an Assessment. In the Matter of CHARLES SHULTZ, to Vacate an Assessment.
   Orders reversed.

Opinion

Per Curiam.