text:
    Johann August Kujek, Resp’t, v. Manasseh L. Goldmann, Impl’d, App’lt.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    1. False representations—Inducing marriage with female who has been seduced.
    An action may lie maintained against one who, having seduced a female, induces plaintiff to marry her on representations that she was a good virtuous girl.
    2. Same—Damages.
    In such a case a verdict for $2,000 is not excessive.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Max Altmayer, for app’lt; A. P. Wagener, for resp’t.
   Ehrlich, Ch. J.

The jury by their verdict have found that the defendant seduced one Katie Harass, a domestic in his employ, whereby she became pregnant with child.

That while in this condition he induced the plaintiff to marry the said Katie on his representation that she was a good, virtuous girl, the plaintiff believing and relying on the representation and knowing nothing to the contrary.

The defendant knew that his representation was false, and that he was deceiying the plaintiff to his injury.

Under such circumstances, we are of opinion that notwithstanding the novelty of the action, it is maintainable, and that such a wrong has its remedy.

The verdict in favor of the plaintiff for $2,000 was not excessive, and there appears no substantial reason for interfering with it.

We find no error in the rulings, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Ñewburger and McCarthy, JJ., concur.


source: Caselaw Access Project

author: Newburger, J.

license: Public Domain

text:
    Smith A. Brooker et al., App’lts, v. John Filkins, Resp’t.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    Trial—Summing up.
    An objection that the trial court in an action for conversion erred in permitting the counsel for the defense in summing up to refer to the effect that a verdict would have on defendant is not available on appeal where it does not appear that the attention of the trial court was called to such conduct on the part of counsel.
    Appeal from judgment in favor of defendant, entered on verdict.

      Carpenter & Hassett, for app’lts ; Abner C. Thomas, for resp’t.
   Newburger, J.

During the year 1889, the defendant was employed by plaintiffs to deliver milk to plaintiffs’ customers, and it was part of his duty to collect moneys as a part of his employment.

This action was brought to recover the moneys collected by defendant and converted to liis own use.

On the trial of this action the jury found a verdict for defendant.

The counsel for appellants insists that the trial justice erred in permitting the counsel for the defense, in summing up, to refer to the effect that their verdict would have on the defendant.

A careful examination of the printed case fails to disclose anywhere that the attention of the court was called to such conduct on the part of counsel, and therefore the contention is without merit.

Jhe case was properly submitted to the jury, and none of the exceptions would warrant us in disturbing their verdict.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.


author: Haight, J.

text:
    Antonina Kowalewska, Adm’rx, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Negligence—Injuries caused by. acts op two companies.
    Where injury occurs by reason of the negligent acts of two railroad corporations their liability is several as well as joint, and an action can be maintained against either one of them.
    2. Same—Insufficient inspection.
    Previous to delivering a car of coal to another corporation on its trestle de fendant’s employes inspected the same and fo undthe chain of thetbrake to be slack; this was remedied and the car delivered. When the employes of the other road undertook to operate it they could not do so, and the car by gravity ran against another in which intestate was at "work and killed him. It was then found that the lever of the brake was out of its guard, which could have readily been discovered. Held, that if this was the case when the inspection took place the inspectors were negligent in not discovering it, and that whether this was the case or the lever was subsequently displaced while the car ascended the trestle was a question of fact for the jury.
    3 Appeal—Exceptions.
    While the general term may reverse even though there are no exceptions, this p )wer will be exercised only where it is apparent that great injustice has been done. ,

      Appeal from a judgment entered upon a verdict at the Erie circuit, and from an order of the Erie special term denying defendant’s motion for a new trial upon a case and exceptions.

      A. D. Scott, for app’lt; Leroy Parker, for resp’t.
   Haight, J.

This action was brought to recover the damages sustained by reason of the death of the'plaintiff’s intestate.

On May 13,1889, the plaintiff’s intestate • was in the employ of one John Piecliowiak with others engaged in shovelling coal on one of the defendant’s cars into a pocket of the Delaware & Hudson Canal Company’s trestle. Whilst so engaged, another car belonging to the defendant company ran against the- car in which he was working, causing him to pitch forward through the hole in the bottom of the car, into which he was shovelling the coal, inflicting an injury which caused his death on the following day.

The defendant was engaged in transporting coal over its road consigned to the Delaware & Hudson Canal Company and delivered -the same to that company upon the summit of its coal trestle, at which point the car loaded with coal was taken in charge by the employes of the Delaware & Hudson Canal Company and run by the force of gravity over its trestle to the pocket or place where it was to be unloaded and there stopped, at which place the same was boarded by John Piecliowiak or those in hisemplo3r, who unloaded the same under a contract with the latter company. It appears that there was a contract between the two companies, but the same is not printed in the appeal book, neither was it produced upon the argument. It appears, however, that the defendant company caused its cars to be inspected as they arrived at the foot of the trestle, and if found in good condition they were drawn up to the top of the trestle with power furnished by the defendant and there taken in charge by the servants of the Delaware & Hudson Canal Company.

On the day in question the plaintiff’s intestate was engaged as we have described unloading the car upon the trestle. The car which followed it was inspected at the foot of the trestle by the employes of the defendant, and the brake was found to be out of order, in this : that there was a slack to the chain of the brake that thereupon the inspector went under the car and tightened the brake up so as not to let there be too much slack, and finding that there was nothing else the matter with the brake, marked the car as having been inspected and found all right, and sent it on up the incline onto the trestle. As it arrived at the summit of the trestle it was boarded by an employe of the Delaware &- Hudson Canal Company, who immediately went to the brake and undertook to operate it, but found that he could not. He thereupon called to another servant in the employ of the latter company, who jumped upon the car, and the two together undertook to turn the brake up, using their best endeavors in this respect. Meantime the car was increasing in speed, running along a slight incline upon the top of the trestle. Other employes of the latter company, observing the situation, threw boards under the wheels, attempting to stop the car, but were unable to do so, and it pro-deeded, on down the incline, colliding with the car in which the plaintiff’s intestate was at work, causing the accident already described. After the collision the brake was examined, and it was then found that the lever was out of its guard.

It is contended that the defendant company had fully performed its duty, and that if there was any negligence it was that of the Delaware & Hudson Canal Company in not inspecting the same as it arrived at the summit of the trestle when it was taken in charge by the employes of that company. It may not be worth while to examine the question of the liability of the latter company, for where injury occurs by reason of the negligent acts of two railroad corporations their liability is several as well as joint and an action can be maintained against either one of them.' Kain v. Smith, 80 N. Y., 458.

We will therefore dismiss the subject by calling attention to the fact that the car was inspected by the defendant’s servants at the foot of the incline to the trestle and so marked, thus representing to the servants of the Delaware & Hudson Canal Company that the car was in good order.

The question is therefore as to whether the servants of the defendant company properly inspected this car. It was inspected, as we have seen, with the result described. Was the lever then out of its guard ? If so, it was not discovered by the inspectors. The lever could have been readily seen by looking under the car. It was not a secret or hidden defect, and if the lever was then out of its guard the inspectors were negligent in not discovering it. It is claimed that some of the pockets in the. trestle were filled with coal above the tops of the rails, and that the lever might have been knocked out of its place by the coal in some of the pockets over which it passed upon the trestle. There was evidence, however, that on the day in question none of the pockets were filled with coal above the rails and that consequently the lever could not have been misplaced in this way. Whether the lever was then out of place at the time the car was inspected, or was subsequently displaced whilst the car was ascending the trestle, was a question of fact for the jury, and a verdict having been awarded in favor of the plaintiff, that issue must be regarded as settled.

The plaintiff’s intestate was not a co-employe with the servants of the defendant, and the rule that the master is not liable for injuries resulting from the negligent act of fellow servants has no> application. Svenson v. The Atlantic Mail Steamship Company, 57 N. Y., 108 ; Young v. N. Y. C. R. R. Co., 30 Barb., 229.

The deceased was, as we have seen, engaged in shovelling coal in company with others, and does not appear to have seen or heard of the approaching car until the collision. There was no evidence tending to show that he was guilty of contributory-negligence.

The appellant complains of the charge of the court as containing expressions tending to prejudice the jurors against the defendant, and to induce them to render extravagant damages. Ho exceptions, however, were taken upon the trial to the expressions now complained of. The general term may reverse even though there are no exceptions taken. Roberts v. Tobias, 120 N. Y., 1; 30 St. Rep., 189; Cudahy v. Rhinehart, 133 N. Y., 248-252; 44 St. Rep., 898. But this power will only be exercised where it is apparent that great injustice has been done. A careful reading of the charge has led us to the conclusion that it was quite fair to the defendant and the expressions complained of taken in connection with that which precedes and follows should not have operated to prejudice the jurors.

Numerous exceptions were taken to the charge as made and to the requests to charge that were refused. We have examined them but find none which we think require a new trial.

The judgment and order appealed from should be affirmed.

Lewis and Bradley, JJ., concur.


text:
    William H. Crandall, Pl’ff, v. The Lehigh Valley Rail-Railroad Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Negligence—Conteibutoby.
    Plaintiff, after passing defendant’s crossing on one street, drove at a fast trot down the street and turned into another leading to another crossing. When within 30 feet of the main track he was warned of an approaching ’train aud attempted to a\ oid it, but was unable to do so and was injured. The view of tlietrackwas unobstructed from the time he passed the first crossing except for a, short distance, and his horse gentle and easily managed. Meld, that as he could have avoided the danger by driving slower and exercising his senses by looking and listening, he was guilty of contributory negligence, and a nonsuit was proper.
    Motion by plaintiff for a new trial upon a case and exceptions ordered to be heard at the general term in the first instance.

      John D. Teller, for pl’ff; John M. Brainard, for def’t.
   Haight, J.

This action was brought to recover the damages which the plaintiff'sustained to his person and property by reason of a collision with one of the defendant’s trains upon Orchard street in the city of Auburn.

Orchard street runs east and west. It is crossed by Baker avenue which runs north and south. The defendant’s road approaches Orchard street from the north-east and crosses the same east of Baker avenue and then passes diagonally across Baker avenue south of Orchard street.

On the 22d day of August, 1891, about half past four o’clock in the afternoon, the plaintiff approached Orchard street on Baker avenue in a light open wagon, driving a horse. The horse was upon a trot, but as the plaintiff approached the railroad crossing in Baker avenue he slowed down to a walk, passed over the crossing and then started the horse into a trot. He passed down to Orchard street, turned to the east into that street, crossed two branch tracks and the Fair Haven main track, and at that instant a train approached upon the depot track. The plaintiff turned his horse to the south to escape the train but was unable to do so. The side of the wagon came in contact with the passing train, causing an injury to the plaintiff’s person and damages to his property. At the time of the collision a freight train headed by an engine stood upon one of the branch tracks north of Orchard street, the pilot of the engine reaching to the north line of the _ street. The evidence on the part of several of plaintiff’s witnesses tends to show that they heard the whistle sounded of the approaching train and also heard its bell ring. It also appears that there was a flagman stationed at the crossing, but the plaintiff testifies that he stood talking with ar other man with his flag rolled up and did not warn him of the approaching train; that he did not see the approaching train until he had crossed the branch tracks and was within thirty feet of the crossing; that as soon as he could he turned his horse to avoid a collision. lie claims that the train was running at a higher rate of speed than authorized by the ordinances of the city, and that there was negligence on the part of the flagman in failing to warn him of the .approaching train.

Upon the conclusion of his testimony the trial court ordered a nonsuit, we presume upon the ground that the plaintiff was guilty of contributory negligence, and we shall only consider that question.

It appears from the plaintiff’s testimony that the horse was more than an ordinarily fast horse; that from the crossing in Baker avenue he drove on a trot at an ordinary road gait up to the turn into Orchard street, and that just after he turned into Orchard street he heard some one to his left say: “For God’s sake look out. Here conics the trainthat this was just as he saw the train and he then turned his horse to the right.

His witness, James Keefe, testified that “the horse was going a nice gaitthat he heard the bell of the approaching train ringing, and as the plaintiff turned into Orchard street to cross the tracks he hollered to him.

His witness, Edward Keefe, testified that “he was driving very fast; that he was holding his horse with a stiff rein and coming with good speed; would say more than a good road gait; saw Mm first about fifty feet from Orchard street crossing; I next saw him turn into Orchard street with a short turn,” and upon the cross-examination he testified that his attention was first attracted by the whistle of the train coming around the curve and the ringing of the bell; that “ I heard the whistle and bell ring a period of time before I saw Crandall; first saw Crandall coming through Baker avenue, just before he turned the corner of Orchard street, coming out from in front of the building; he was driving at a very fast gait; he was driving, at what I should call a good gait; might have been a-trifle over three minutes; between a three and a four minute gait;” that one Jerry Murphy was standing between the Weedsport track and the main track and tried to stop the plaintiff; that he shouted to him and held up his hands; that there were several people there who also shouted to him.

Witness Le May testified that “from the time I saw Crandall uutil lie was struck lie was driving on a trot, a pretty good road gait; ” that some one hollered first and two or three hollered right away afterwards; that the plaintiff had then turned off from Baker avenue and was by the hydrant.

Witness Yrooman testified that he “saw a man coming towards the railroad track with a horse and buggy and coming pretty fast; the horse appeared to be on a jump when I saw him, as though • trying to run; as though he was frightened.”

The witness McClelland was upon horseback and riding along-Baker avenue on a trot. The plaintiff passed him between the-railroad crossing on Baker avenue and Orchard street, turned into Orchard street and collided with a passing train as the witness arrived at the intersection of Orchard street with Baker avenue.

It further appears from the map and exhibits introduced in evidence that the approaching train could have been seen by the plaintiff from the time he crossed the railroad tracks in Baker avenue until he reached Orchard street. There may be a doubt as to whether he could see the train whilst turning into Orchard street by reason of the engine standing upon one of the branch tracks, but after reaching the branch tracks the view of the approaching train was then unobstructed.

The plaintiff’s own evidence is to the effect that his horse was gentle and easily controlled. He was well acquainted with the locality and had often crossed at the place in question. The evidence of his witnesses tends to show that he was driving very fast, and it appears to us that had he been driving slower, exercising his senses by looking and listening, he could have seen the train in time to have avoided injury, and under the authorities of Powell v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 613; 14 St. Rep., 74, and Martin v. N. Y. C. & H. R. R. Co., 50 id., 553, the nonsuit should be sustained.

The motion for a new trial should therefore be denied, with costs, and judgment ordered for the defendant upon the non-suit

Lewis and Bradley, JJ., concur; Dwight, P. J., not sitting.


text:
    Jonathan L. Slater, Resp’t, v. Casper J. Drescher, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. New tblal—Waives. '
    A plaintiff by omitting to ask for a .direction of a verdict in his favor does not preclude himself from moving for a new trial on the ground that the verdict was against the evidence or the weight of evidence. That is the rule only where the new trial is asked for on the ground that there was no evidence to support the verdict.
    2. Same.
    The general term will not interfere with the exercise.of the discretion of the trial court in granting one new trial unless it is quite apparent that there has been an abuse thereof.
    Appeal from an order of the Brie circuit setting aside a verdict of the jury rendered in favor of the defendant for no cause-of action upon the minutes “as against the evidence and the weight of the evidence,” and granting a new trial.

      Thomas Cary Welch, for app’lt; Henry W. Brush, for resp’t
   Haight, J.

This action was brought to recover the balance -due for services rendered by the plaintiff as an attorney and counsellor at law for the defendant in two certain actions to foreclose mechanics’ liens, and for divers other legal services and consultations. An account had been rendered by the plaintiff for $280.07, upon which the sum of $125.00 had been paid. The defendant claimed that when the account was rendered he disputed the amount thereof, and that in view of a settlement of the two actions without trial the plaintiff agreed to accept $187.12 in full, and that the same was to be paid by crediting thereon the amount of the defendant’s bill against him for plumbing, and the balance, $125, in cash, which was paid. His contention is supported by the evidence of himself, his son and book-keeper, and the verdict was in his favor. The trial court granted a new trial, as we have seen, upon the ground that the verdict was “ against the evidence and the weight of evidence.” The plaintiff asked for a new trial upon the ground that the verdict was against the weight of evidence, and it is upon that ground alone that the order must be supported if at all, for it cannot be successfully claimed that there was no evidence to support the defendant’s contention.. When the money was paid over by the defendant to the plaintiff he gave a receipt back therefor, and in such receipt he acknowledged the payment of the money to apply upon the account as rendered, etc., and inasmuch as this receipt was taken and held by the defendant, it becomes some evidence in support of the plaintiff’s claim. Whether this receipt when taken by the defendant was .read over by him so that he fully understood its contents does not appear. .

It is quite possible that this court upon the evidence as it stands would not have felt justified in ordering a new trial. But the trial court had the advantage of hearing and seeing the witnesses when they delivered their testimony, and is therefore better able to judge as to their character and truthfulness, and it is the practice to allow that court considerable latitude in the granting of new trials where the verdict is against what it believes to be the facts.

The plaintiff did not ask the court to direct a verdict in his favor. It is now claimed that because of such omission he admitted that there was evidence sufficient to carry the case to the jury, and that in submitting it to the jury he took his chances upon recovering a verdict. It is quite possible that such is the rule where the new trial is asked for upon the ground that there was no evidence to support the verdict. In such a case the ruling is upon a question of law and may be followed by an exception. Peake v. Bell, 7 Hun, 454; Mortimer v. Doelger, 11 N. Y. Supp., 583; 33 St. Rep., 705; Keeler v. Dyeing Establishment, 54 N. Y. Superior Ct, 369.

But this is not the rule where the new trial is asked for upon the ground that the verdict is against the weight of evidence. Such a motion is authorized by the Code and a verdict cannot be directed by the court upon the ground that the evidence of one party predominates over that of the other. Allgro v. Duncan, 24 How. Pr., 210; affirmed 39 N. Y., 313; McDonald v. Walter, 40 id., 551; Barrett v. Third Avenue R. R. Co., 45 id., 628-632.

In Shearman v. Henderson, 12 Hun, 170, Talcott, J., criticised Peake v. Bell, supra, and refused to follow it. The criticism is just, provided the motion in that case was made upon the ground that the verdict was against the weight of evidence, or on account of insufficient evidence, which means the same thing. But, as we understand, that decision is placed upon the grounds that there was no evidence to sustain the verdict. The trial court in determining whether a verdict should be set aside as against the weight of evidence must be controlled largely by the circumstances .surrounding each case. There is no well defined rule by which he must be governed. The motion is addressed to his sound discretion, and he should inquire as to whether or not substantial justice has been done. The general term doubtless has the power to review the discretion of the trial judge as exercised upon these motions, and is the only court that has such power. It has been its policy, however, not to interfere with such discretion in awarding one new trial unless it was quite apparent that there had been an abuse thereof. Barrett v. Third Avenue R.R. Co., supra ; Bannon v. McGrane, 45 N. Y. Superior Ct., 517; Langlois v. Hayward, 36 St. Rep., 59.

The order should, therefore, be affirmed, with costs of this appeal to the respondent.

Dwight, P. J., and Lewis, J., concur.


author: Follett, J.

text:
    Emma C. Wooster, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Negligence—Evidence—Previous carefulness of driver.
    In an action for injuries caused by a collision between the plaintiff’s carriage and a street car, evidence that plaintiff’s driver had previously-been a careful driver is irrelevant and incompetent.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial on the minutes.
    This action is for the recovery of damages for personal injuries received in a collision between a coupe in which the plaintiff was driving and defendant’s street car, caused, as it is alleged, by the negligence of the driver of the car. The plaintiff also seeks to recover special damages, the sum paid for the attendance of her physicians and nurse, and the expenses of repairing the coupe. November 21, 1887, the plaintiff was driving east on Forty-fifth street in a coupe drawn by one horse, and driven by a coachman who attempted to cross deféndant’s track in Broadway in front of a car approaching from the south. A collision occurred, by which the plaintiff’s left collar bone was broken and the coupe injured. The issues of fact upon which the case turned,;were; (1) Did the driver of the car negligently cause the collision? (2) Did the driver of the coupe negligently contribute to the accident? Upon these issues the testimony was conflicting, but the jury found both in favor of the plaintiff.

      Root & Clarke (Bronson Winthrop, of counsel), for app’lt; W. T. B. Milliken, for resp’t
   Follett, J.

On the trial the plaintiff was asked:

“ Question. The coachman who was driving at the time, how long had he been in your employment ? Answer. Oh, he had been with me for five years then; he is with us still.
“Q. Do you find him careful or careless ? (Objected to by the defendant as immaterial, incompetent and irrelevant. Objection overruled. Defendant excepted.) A. Oh, very careful; a very careful driver, indeed; it was a gentle horse.”

Like evidence was given by the plaintiff’s husband, over the defendant’s objection and exception. This evidence was undoubtedly supposed to bear on the issue of contributory negligence of the plaintiff’s driver. It certainly had no relation to any other issue. The issue was not whether the plaintiff had negligently employed or continued in her service a careless or unskillful driver, nor whether he had been careful or negligent on previous occasions, but it was, “Did his negligence contribute to this accident?” This evidence was not relevant to this or to any issue in the case, and was incompetent. Jacobs v. Duke, 1 E. D. Smith, 271; Warner v. N.Y. C. R. R. Co., 44 N. Y., 465, 472; Maguire v. Middlesex R. R. Co., 115 Mass., 239 ; Whitney v. Gross, 140 id., 232; Hays v. Millar, 77 Pa. St., 238; Whart. Neg. § 169; Whart. Ev., § 40; Abb. Tr. Ev., 584. It has been many times held that it is not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed similar acts, or that he was generally negligent or unskillful. The same rule is applicable to a plaintiff seeking to show that the acts of her servant did not contribute to the accident.

The plaintiff was permitted to show on the trial, over defendant’s objection that it was “ incompetent, irrelevant and immaterial," the expenses of her cure and of repairing the coupe. It appears that she is a married woman living with her husband, and the presumption is that he is liable for and discharges the ordinary expenses of the household and of the care of his wife and family. Before the plaintiff could be entitled to recover for those items, it was necessary for her to show that the' expenses were paid out of her own estate. This was not done. But the objection raised to this evidence was not as specific as it should have been. The objection did not call specifically to the mind of the court and of the plaintiff’s counsel that the evidence was objected to on the ground that the plaintiff was not, but that her husband was, entitled to recover for these items,- without showing that she had personally paid the charges or had become liable to pay them. Had this objection been made, it might have been obviated on the trial by showing that the plaintiff had .a personal estate and had paid the charges out of it, or that she has become liable to pay them. Tliomp. Trials, § 693 et seq. But we think, for the first error discussed, that a new trial should be had. The question of negligence and of contributory negligence is adose one, and we cannot say that the erroneous evidence did not influence the jury. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and O’Brien, J., concur.


author: Parker, J.

text:
    The New York News Publishing Co., Resp’t, v. The National Steamship Co., Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    •Contract—Agreement to pay in specific articles.
    A contract providing for payment in specific articles, or otherwise than in money, is converted by a refusal of performance by the party liable to pay into one for the payment of money.
    Appeal from judgment in favor o£ plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover a balance claimed to be due on a contract for advertising.

      John Chetwood, for app’lt; James M. Smith, for resp’t.
   Parker, J.

The jury were authorized in finding, as from their verdict it must be assumed they have, that an agreement was made between the parties by which the plaintiff was to do certain advertising for the defendant, and to take its pay in tickets. The agent of the defendant attempted, but unsuccessfully, to challenge the authority of the employe McLean, who represented himself as acting for the defendant, and with whom plaintiff made the contract which it has substantially performed. _ He testified, however, that there was some conversation with" him, McLean, and tickets taken out. (It appears that, after the advertising had run for some time, steamship tickets of the value of $360 were applied for and issued to the plaintiff.) “Question. You say you never gave any authority to any one to put the advertisement in? Answer. I must have given authority to somebody to put that advertisement in, but I do not recollect it * * Isay distinctly, if I made any arrangement, it was made for tickets, a certain number of tickets, which were taken out of the office after-wards by Mr. Wood or his agents. * * * Q. Did you authorize McLean to make any bargain with the Daily News in reference to advertising? A. I don’t recollect it. I must have done it with somebody, because the tickets were taken out, so that I must have passed them at the time. * * * I must have authorized some one, but I cannot recollect who it was with, or what I said at the time, so as to be able to swear to it.” The rest of Ms testimony need not be referred to, as it is evident from that already quoted that the jury were not required to find from his testimony that McLean acted without authority.

The contract having been established, it was shown that the value of the advertising done thereunder by the plaintiff was $951.18, while it had received tickets only of the value of $360; that it had demanded the tickets of the defendant, but had been refused. Refusal of performance on the part of the defendant operated to convert its obligation into one for the payment of money. 1 Sedg. Dam., 509; Gleason v. Pinney, 5 Cow., 152; Smith v. Smith, 2 Johns., 235, 243; Brooks v. Hubbard, 3 Conn., 58. This was the view adopted by the trial court, and the exception taken to his charge intended to raise the question that there should be no recovery in money is without merit. Defendant objected to the evidence on which the recovery is founded on the ground that it was not pleaded.

The complaint merits some criticism, but it called the attention of the defendant to the contract on which plaintiff rested its right to recover. Besides, it appears that some of the testimony was taken de bene esse, so that the defendant came to the trial understanding full well the theory of the plaintiff’s action. When the testimony was offered he did not allege surprise, and, from what has been said, it is apparent that he could not well have done so. As no injustice has resulted, the complaint will be deemed amended to conform to the proofs. Judgment and order affirmed, with costs.

O’Brien and Follett, JJ., concur.


author: Per Curiam.

text:
    Edward S. Stokes, Resp’t, v. William E. D. Stokes, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed October 13, 1893.)

    Bill of particulars—Libel.
    In an action for libel in which no special damages are claimed a bill of particulars will not be granted. It is no part of the office of a bill of particulars to state the elements which may enter into the general damages which may be recovered in such an action.
    Appeal from order denying a motion for a bill of particulars.
    The complaint alleges three separate causes of action for three several alleged libels, for which plaintiff demands $250,000 damages. The first alleged libel is a letter by defendant to the editor of the New York Herald, and published in that newspaper; the second alleged libel is the publication, in a complaint in an action in this court, of two written communications signed by defendant and a codirector of a corporation known as the “ Hoffman House,” addressed to plaintiff as president, and to a Mr. Cornish as secretary, of the Hoffman House, concerning the management of the affairs of that corporation; and the third alleged libel is that, after publishing the complaint in said action, defendant caused the same to be served on plaintiff and the other defendants in said action, and that said complaint contained “ a large mass of irrelevant, impertinent and scandalous matter.” On May 15, 1893, defendant served a demurrer to the first cause of action, and an answer to-each of the other two causes of action, and on the same day gave notice of motion for a bill of particulars.
    Defendant’s notice of motion for a bill of particulars is as follows : “ Take notice that upon the pleadings herein, and upon the affidavit of which a copy is hereto annexed, we shall move this-court, at chamber's thereof at the county court house in this city, at the opening of court on the 24th day of May, 1893, that plaintiff be required and directed to furnish defendant a bill of the particulars of the claim of plaintiff herein, set forth at the conclusion of the complaint herein, as follows: ‘ That by reason of the premises the plaintiff has been injured in his reputation and credit and property to his damage in the sum of $250,000, in the following matters and particulars, to wit: The pecuniary extent of plaintiff’s injury and damage in his reputation as to each of the three-separate causes of action set forth in the complaint. The pecuniary extent of plaintiff's injury and damage in bis credit as to-each of said three separate causes of action, giving the names and places of business of the persons whose credit he has lost, and the dates, places, amounts and details of such losses in each case as to each of such persons. The pecuniary extent of plaintiff’s-injury and damage in his property as to each of said three separate causes of action, giving the dates, places, amounts and details thereof, and the particular property or properties which sustained such loss or damage ; and for such other and further-bill of particulars of the damage and injury claimed in the complaint herein as may be just.’’

      Holmes & Adams (Artemus H. Holmes, of counsel), for app’lt; John J. Adams, for resp’t.
   Per Curiam.

This is an action for a recovery of general damages for the publication of matter alleged to be defamatory. Three independent causes of action are set forth in the complaint.. The amount of -the damages which the plaintiff claims to have sustained by each cause of action is not stated, but it is alleged that the plaintiff has sustained $250,000 damages by reason of the three causes of action stated. No special damages are claimed. The defendant-moved for an order requiring the plaintiff to serve a bill of the. particulars of the damages sustained by him, which was denied. In such cases the plaintiff cannot be compelled to state how much he claims for loss of reputation, for injured feelings, or how much he claims by reason of the personal ill will of the defendant. It is no part of the office of a bill of particulars to state the elements which may enter into the general damages which may be recovered in such an action. The order should be affirmed, with ten dollars costs and disbursements.

Yah Bruht, P. J., Rollett and Parker, JJ., concur.


text:
    The New York Breweries Co., Limited, App’lt, v. Edward P. Nichols et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Costs—ExtrA allowance.
    Where defendants appear by separate attorneys, an extra allowance equal to five per cent, may tie apportioned between them, bnt cannot be allowed, to each defendant or set of defendants.
    Appeal from so much of an order granting leave to discontinue as imposed a condition that “ plaintiff pay, within ten days after the taxation of costs herein, separate bills of costs and an extra allowance of $250 to each defendant or set of defendants appearing by separate attorneys.”
    Action to recover $5,000 for preventing the sheriff from taking possession of goods levied upon.

      Guggenheimer & Untermyer (M. Weinman, of counsel), for app’lt; Hatch & Wickes, for resp’t Douglas; Owen, Gray & Sturges, for resp’ts Nichols et al.

   Per Curiam.

An extra allowance to parties defendant cannot exceed five per. cent on amount involved. If such defendants appear by separate attorneys, an extra allowance equal to five per cent may be apportioned between them, but cannot be allowed to each. Lane v. Van Orden, 63 How. Pr., 237. On this motion for leave to discontinue the court determined that there should be allowed to each party appearing an extra allowance of five per cent. This was error, and the order should be so modified as to provide for an extra allowance of $125 to each defendant or set of defendants separately appearing, without costs.

Van Brunt, P. J., and Parker, J., concur.


author: O’Brien, J.

text:
    The Chase National Bank, Resp’t, v. Benjamin C. Faurot, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Usury—National banks.
    The plea of usury cannot be urged against a national bank.

      2. Same—Purchase from brokers.
    The purchase of a note from brokers for less than its face does not constitute usury.
    3. Bills and notes—Corporation seal.
    Before an instrument in the form of a promissory note made by a corporation, with what purports to be the seal of the corporation impressed thereon, and containing no words indicating an intention to execute it as an instrument under seal, can be held to be a specialty and not a negotiable promissory note, it must be shown that the seal is that of the corporation and was affixed by its authority, and that it was the intention of the parties that it should be an instrument under seal and not negotiable.
    ■ Appeal from judgment in favor of plaintiff, entered upon, verdict, and from order denying motion for a new trial.

      Wetmore & Jenner (Lawrence E. Sexton, of counsel), for app’lt; Simpson, Thatcher & Barnum (Philip G. Bartlett, of counsel), for resp’t.
   O’Brien, J.

— This action was brought against defendant as indorser of a promissory note, the face of which was as follows :

“ 16,787.02. Lima, Ohio, July 8, 1890.
“ Four months after date we promise to pay to the order of B. G. Faurot sixteen thousand seven hundred eighty-seven and 2-100 dollars at Lima Hat’l Bank, Lima, Ohio. Yalue received.
“Hew York Construction Co.
“ [Seal of the Company.] By F. P. Graf, Secy."

The defendant indorsed this note, and it was given to his attorney for the purpose of carrying out an agreement entered into between the defendant and one Simon in connection with certain negotiations relating to the construction of a railroad, for which Simon agreed to procure 'the capitalists. The unquestioned arrangement between the defendant and Simon was that until such time as Simon had procured the execution of a proper agreement by the capitalists, whose names were given, to construct the road, the note in suit was not to be delivered to him, Simon, however, succeeded in obtaining possession of the note without procuring the execution of the agreement, as he had promised, and subsequently delivered it to the president of his own bank, who through note brokers sold it to the plaintiff for value. The amount paid by the brokers was $16,000, and upon the purchase of the note from the brokers the plaintiff paid $16,500. These figures are referred to because upon them was predicated one of the defenses, that of usury, which may at the outset be disposed of by the statement that it is not available to defendant for two reasons, the first being that the plaintiff is a national bank, against whom the plea of usury could not be urged; and, secondly, it was not usury to purchase the note for less than its face in the manner in which the plaintiff purchased it, nor could such purchase in any way be tortured into an agreement by which the plaintiff exacted a greater sum than the legal interest for the loan of $16,000. It appearing that the note had been diverted, the question of the good faith of the plaintiff, and as to whether or not it had paid value for the note, were under proper instructions submitted to the jury, who having found in favor of the plaintiff, their verdict should be sustained, unless there are some ,valid legal grounds for disturbing it.

The principal ground relied upon by appellant is that the presence upon the note of the words “ Hew York Construction Company Seal,” stamped or impressed upon the paper, detracts from its character as a negotiable promissory note. The question thus presented, therefore, is whether the instrument sued on was a negotiable promissory note, or, as the result of the impression upon the paper of what appears to be the seal of the corporation, it became a specialty, and thus lost its negotiable character. We can see no distinction, upon the facts here appearing, between this case and the one recently decided by this general term, of Weeks v. Esler, 68 Hun, 518 ; 52 St. Rep., 758, wherein it was held that “before an instrument in the form of a promissory note made by a "corporation, with what purports to be the seal of the corporation impressed thereon, and containing no words indicating an intention to exebute it as an instrument under seal, can be held to be a specialty, and not a negotiable promissory note, it must be shown that the seal is the seal of the corporation, and was affixed by its authority, and that it was the intention of the parties to the instrument that it should be an instrument under seal, and not negotiable.” The appellant concedes that, if the rule thus laid down in Weeks v. Esler is sound in law, it is difficult to distinguish it from the present case, so far as the question of indorsement is concerned, and would result in an affirmance of the view taken by the court below as to the negotiability of the note. Because pressed upon us with considerable force and ability, we have examined the question anew, and are satisfied with the correctness of the ruling in the case cited, which conclusion practically disposes of the contentions raised upon this appeal, and obviates the necessity of our examining the many other suggestions made of what, if a different rule were to prevail, might be the law controlling the rights of the parties. We think that the judgment was right, and should be affirmed, with costs.

Follett and Parker, JJ., concur.


text:
    Frank D. Cheever, Pl’ff, v. The Pittsburgh, Shenango & Lake Erie Railroad Co., Def't.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Bills and notes—Bona nidio holder.
    One to whom notes or securities of a corporation are offered by one of its officers in payment of, or as security for, the individual liability of such officer or that of his firm is bound to inquire into the circumstances-under which he became possessed of 'such notes or securities, and if he fails to make such inquiry, does so at his peril.
    2. Same.
    The defendant corporation issued notes to enable its president to purchase certain rolling stock for it, the same being payable to his private-secretary. They were not used for that purpose, but as collateral security for notes of a firm of which the president was a member, given to procure a loan from plaintiff’s transferor, and plaintiff received the same after maturity. In an action on the notes, Held, that plaintiff’s transferor was bound to inquire into the circumstances under which the firm became possessed of the notes, and not having done so was chargeable with notige of the facts which the inquiry would have elicited, and that a recovery could not be had.
    Exceptions ordered heard at general term in the first instance.

      Theall & Beam (Austen G. Fox, of counsel), for pl’ff; Frank Sullivan Smith, for deft.
   Parker, J.

The directors of the Pittsburgh, Shenango & Lake Erie Railroad Company, on the 17th day of February, 1888, passed the following resolution:

“ Resolved, That the president be and hereby is authorized to make a contract for the purchase of five hundred flat cars for the use of this company, and is authorized, in carrying out this purchase, to give notes of this company to the sum of $10,000.”

On the same day the secretary of the company prepared two notes for signature, bearing a later date, and they were signed by the secretary and president. The notes were in the form following:

“ $5,000.' Greenville, Pa., Feb. 24, 1888.
“ Three months after date the Pittsburgh, Sbenango & Lake Brie Railroad Company promises to pay. to the order of John T. Bruen five thousand dollars, at the American Exchange Bank, ¡New York city. Value received.
“ The Pittsburgh, Sbenango & Lake Erie Railroad Company.
“ By M. S. Frost, President.
“Attest: E. S. Templeton, Secretary.”

The secretary was not in favor of the execution of the notes at that time, but the president, who had principal charge of the finances of defendant, explained that he might not be able to induce a car company to accept the notes in payment for cars, and then it would be necessary to have the notes discounted, and the proceeds used for that purpose. To the suggestion of the secretary that if the notes should be lost, and finally, before maturity, pass into the hands of a bona fide holder, the company might sustain serious loss, the president answered that such risk could be avoided by making them payable to the order of his private secretary, Bruen, who would not indorse them until the president shquld be ready to use them in the accomplishment of the purpose aimed at by the resolution. The president did not use the notes, directly or indirectly, for the purchase, or in payment, of flat cars ; but on the 19th day of March the firm of M. S. Frost & Son, of which defendant’s then president was the senior member, borrowed from Francis A. Brooks the sum of $30,000, giving their note therefor, and as collateral security thereto, among other things, the notes in question. These notes then bore the indorsements of private secretary Bruen and M. S. Frost & Son. Subsequently, but long after maturity, Brooks became the owner of the collateral, and thereafter they were duly transferred to this plaintiff.

The facts to which we have briefly alluded are uncontradicted. No material fact is, anywhere in the record, controverted. They command the conclusion of law that the president of the company fraudulently appropriated these notes to his private use. With this remark, we dismiss from further consideration the request of the plaintiff to have the question of fraud submitted to the jury.

The plaintiff urges that, the fraud being established, the notes are still valid obligations in the hands of a bona fide purchaser, and in the discussion he gives prominence to the fact that Brooks had no suspicion of the fraudulent conduct of Frost. But it is not enough, in a case like this, that the purchaser be ignorant of the wrong, in order to entitle him to claim the protection which the law affords to the good faith purchaser of commercial paper. There are cases in which it is not sufficient to close the eyes, and say, “I did not see cases where the circumstances are such as to put the prudent man on inquiry, and if reasonable inquiry will develop the wrong, he cannot afterwards claim, as against the party sought to be injured, protection because he did not know ■of the fraud. One of the instances which calls for inquiry by the purchaser of commercial paper is where an officer of a corporation is attempting to make use of its business paper for his private purposes. This rule is not unreasonable. The officer occupies a position of trust, which oftentimes affords opportunities, and occasionally presents great temptations, to use his trust for a temporary personal benefit. The knowledge that such is the fact, and the further one that corporations are not accustomed to have dealings with their officers of such a nature as to make it necessary to give them their notes in payment, is sufficient to suggest to every man of ordinary prudence that the possession of the business paper of a corporation by one of its officers, which he avowedly intends to use in payment of, or as security for, a personal debt, is so far suspicious as to prompt inquiry touching his right to so use it. Hence the rule that lie who takes the notes or securities of a corporation from one of its officers in payment of, or as security for, his individual liability, is bound to inquire into the circumstances under which the officer obtained possession of the notes or securities, and if he fails to make such inquiry he does so at his peril. Wilson v. Metropolitan El. Railway Co., 120 N. Y., 145; 30 St. Rep., 787, and cases cited. Now, Brooks testifies that Frost told him, at the time he turned over this defendant’s notes as collateral security for the personal debt •of Frost & Son, that he was the president of the defendant; and certainly he knew that Frost was pressed for money, because he visited Brooks, in Boston, to obtain from him a loan of $30,000.

These facts should have prompted him to inquire how the president came to use the notes of this corporation, whose property had just come from the hands of a receiver, for his individual benefit, and, in law, he was bound to inquire. Whatever is sufficient to put a person of ordinary prudence on inquiry is constructive notice of everything to which that inquiry would reasonably have led. Shaw v. Spencer, 100 Mass., 388. Had he tried to obtain information on the subject, he would naturally have first inquired whether the corporation had authorized the issuing of the notes ; and an examination of the resolution permitting their issue would have disclosed to him that they were issued for a specific purpose, to wit, the purchase of cars. This information would have assured him that the president was without authority to use -them, in the first instance, for his private purposes. Therefore, he would have found it necessary to take a further step, and ascertain whether the notes had accomplished the object for which they were issued, and thereafter passed regularly into the hands of the president, or his firm. All these facts Brooks would have discovered, had he made the inquiry which ordinary prudence dietated, and the law enjoined; and, with such information in his possession, there could be no recovery on the notes by him. Because he was bound to inquire, and did not, he is deemed to have had constructive notice of such facts, with necessarily the same legal result as if he had obtained full knowledge of the facts. As the plaintiff is a purchaser after maturity, he is in no better position than Brooks. Plaintiff’s exceptions overruled, and defendant’s-motion for judgment granted, with costs.

O’Brien and Follett, JJ., concur.


text:
    William Bayard Cutting et al., Resp’ts, v. William E. D. Stokes, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Party wall—Construction of agreement.
    A party wall agreement entered into "by plaintiffs’ grantor and defendant-contained a provision that if at any time plaintiffs’ grantor, its successors or assigns, should elect not to use or occupy said wall, then defendant, on the tender of a deed of the land of said grantor occupied by said wall, should pay a certain price therefor. Held, that the wall when erected became a party wall and. would so continue unless the election provided for was made.
    Appeal from a judgment rendered by the court at special term, against the appellant, restraining him from maintaining openings or windows in the westerly wall of his dwelling house, on the southerly side of Eighty-sixth street in the city of Mew York, and directing and. requiring him to remove said window openings, and to build up the wall with solid brick masonry and to make it a solid or dead wall.

      William R. Martin (Ernest Hall, of counsel), for app’lt; Burrill, Zabriskie & Burrill (J. Archibald Murray, of counsel), for resp’ts.
   Per Curiam.

The House of Mercy, a corporation organized under the laws of this state, was, on the 22d day of July, 1889, the owner in fee of certain premises situated in the city of Mew York, and immediately adjoining certain other premises owned by the defendant. On that day the House of Mercy made a contract of sale with the plaintiffs in this action, embracing the premises owned by it, the deed to be delivered," and the remainder of the purchase money to be paid, January 1, 1890. A few months later the House of Mercy entered into a contract- with the defendant Stokes, who was about to erect a building upon the premises owned by him, which secured to Stokes the right to erect one-half of the westerly wall'upon the lot owned by the House of Mercy, with the right secured to the corporation of using the wall in common with Stokes as a party wall, when used the corporation to pay •its share of the,necessary expense incurred in the erection of the wall. After the making of the agreement, Stokes erected the building as he had contemplated, including the wall which was the subject of the agreement, but left in it certain openings for the purpose of light. The wall was finally completed prior to the delivery of the deed by the House of Mercy to the plaintiffs, which was on January 1, 1890. It is well settled that the adjacent proprietors own in severalty that portion of the wall which stands on their respective lands, subject, however, to its use as a party wall, and that they are mutually entitled to its support for the purposes for which it was erected, Partridge v. Gilbert, 15 N. Y., 601; that each has an easement to have his neighbor keep up his half to support his own, Fettretch v. Leamy, 9 Bosw., 510, and that a court of equity will enjoin the maintenance of openings or windows in a party wall. St. John v. Sweeney, 59 How. Pr., 175. The plaintiffs succeeded to the rights in such respect of the House of Mercy, notwithstanding their title was not acquired until after the wall was constructed; and this brings us to the question whether, under the agreement between Stokes and the House of Mercy, the wall which has since been erected in pursuance of it is a party wall. It recites that:

“Whereas, the said party of the second part (Stokes) is now about to erect a dwelling-house upon his said lot of land, and the said parties have mutually agreed that the westerly wall of such dwelling-house shall be built and erected one equal half part thereof upon the westerly side of the said lot of the party of the second part and the other equal half part thereof upon the easterly side of said lot of the party of the first part, subject to the-provisions of this agreement.”

Immediately following the granting clause, the agreement reads r “ So that the division line between the said two lots shall run through the center of said wall, which wall so to be erected is to be mutually used and enjoyed by the respective parties hereto and their respective heirs, successors and assigns, for all the purposes of a party wall between dwelling-houses or other buildings erected and which may be hereafter erected upon the said two respective lots of land, in just and equal rights and privileges with, respect thereto, except in the case hereinafter provided.”

The exception to which the last phrase refers furnishes whatever basis there is for the contention of the defendant that the wall is not a party wall, but before referring to it reference will be had to one or two other provisions of the agreement. The clause, last quoted is followed by certain covenants on the part of the party of the second part touching the rights and privileges to be accorded to the party of the first part in the use of the wall, which it is covenanted shall be “ to the same extent reciprocally as had been bargained and granted by the said party of the first part to the said party of the second part.” One equal half part of the cost and expense of building the said wall is, however, to be paid to the said party of the second part, his heirs and assigns, by the-said party of the first part, its successors or assigns, as soon as it or they shall make use of, occupy or enjoy the whole of said wall. The exception to which reference has been made is contained in the latter part of the agreement, and is to the effect that if the party of the first part (House of Mercy), its successors or assigns, “ shall at any time elect that it or they will not use or occupy the said wall as hereinbefore provided, then, and in such case, the said party of the second part, his heirs or assigns, on tender to him or them of a proper deed, duly executed for conveying to him or them the fee simple of such portion of said lot of the party of the first part on which said wall shall have been erected, free from all encumbrances, * * * will pay therefor the sum of two hundred and fifty dollars at the time of such tender.” The House of Mercy ■did not elect, nor have'the plaintiffs, as its successors in title, ■elected, that it or they will not use the wall. And the defendant’s •contention is that, until such election takes place, it cannot be •determined whether the wall is, under the agreement, a party wall. We do'not so read the contract. It provides for its erection as a party wall. Its use as such is contemplated by the parties. The rights of all the parties to it are fixed beyond the power of the party of the second part, acting alone, to interfere with it in any way. In order to secure the contract with the House of Mercy, he accorded to it one additional privilege, i. e., if at any time before that corporation, or its successor in title, should make actual use of the wall by the erection of a building, he would, if it or they should elect to take it, pay $250 for so much of its land as the wall covers. When the wall was erected it became, by virtue of the provisions of the agreement, a party wall, and it will so continue, unless the successors of the House of Mercy in the ownership of the lot referred to shall make the election authorized by the agreement. The judgment should be affirmed, with ■costs.

Yan Brunt, P. J., Eollett and Parker, JJ., concur.


text:
    The People ex rel. The Second Avenue Railroad Co., Resp’t, v. Edward P. Barker et al., Tax Com’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    Taxes—Cobpobations—Assessment.
    In determining the amount for which a corporation should be assessed for taxation, its just debts should be deducted from the gross amount of its personalty.
    Appeal from order vacating an assessment upon the property of the relator.
    The Second Avenue Railroad was incorporated January 21, 1853, under chapter 140, Laws 1850 (the general railroad act), .and thereafter constructed and operated "with horses a road in various streets in the city of Hew York, and pursuant to chapter 240 of the Laws of 1872 and chapter 252 of the Laws of 1884, it extended and operated tracks in other streets of the city. Its authorized capital is $2,500,000, which is divided into 25,000 .shares of $100 each. But 18,620 shares have been issued, amounting, at their par value, to $1,862,000. In 1892 the commissioners of taxes and assessments valued the capital of the corporation for the purpose of taxation at $1,500,000. The value of the real estate of the corporation, as fixed in 1892 by the commissioners for the purpose of taxation, was $531,027, which sum, deducted from $1,500,000, left $968,973 as the assessed valuation of the personalty of the corporation. It is not asserted by the corporation that the commissioners’ valuation of its property exceeded the actual value, nor that the valuation placed on its realty was excessive. At the time this valuation was made the corporation was indebted in the sum of $1,938,873, which is .$838,873 more than the assessed valuation of its real and personal property. In 1891 the corporation paid a dividend of four per cent on its outstanding shares. The corporation insisted before the commissioners that it was not liable to be assessed on its personalty, because its indebtedness largely exceeded the value of its entire personal property. The commissioners refused to allow the claim of the corporation, and valued its personalty at $968,972, and entered that valuation on the roll as the basis for taxation. The corporation obtained a writ of certiorari under chapter 269 of the Laws of 1880 to review the assessment, and a reference was had to take and report the evidence offered by the litigants. Upon the coming in of the report the assessment on the personalty of the corporation was vacated and set aside. From that order this appeal is taken.

      George S. Coleman, for app’lts; Charles E. Miller, for resp’t.
   Follett, J.

It was conceded by the counsel for the commissioners on the hearing before the referee that the actual value of the realty of the corporation did not exceed $1,000,000, and be concedes in his brief that the evidence returned by the referee shows that the actual value of its personalty did not exceed $590,-269, which fixes the total value of the relator’s property at $1,390,-269, which is $348,604 less than its liabilities. The learned counsel for the appellants states in his brief that the only question which he presents for consideration on this appeal is “ whether, as a matter of law, the debts of the relator were necessarily deductible from the value of its corporate assets.” Section 3, chap. 456, Laws 1857, provides:

“ Sec. 3. The capital stock of every company liable to taxation, except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate and all .shares of stock in other corporations actually owned by such company, which ai'e taxable upon their capital stock under the laws of this state, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county.”

This section has been several times considered by the courts, .and it is now settled that the term “ capital stock,” as used therein, denotes the property owned by the corporation, and not -the par or actual value of the shares issued to and held by its stockholders. People v. Coleman, 126 N. Y., 433 ; 38 St. Rep., 237. Neither the par nor the actual value of all the shares issued by the corporation is necessarily the measure of the actual value of its capital,—property,—but such value is to be ascertained by evidence or inquiry. The record conclusively showing that the value of the property, real and personal, of the corporation is considerably less than the par value of its shares issued and held by its stockholders, we need not concern ourselves with the meaning: of the term “ surplus profits or reserved funds,” used in the section quoted. The word “capital,” in this judgment, is used as-denoting all of the property of every kind owned by the corporation. In this case the commissioners estimated the real and personal property of the corporation to be worth $1,500,000. They estimated the value of the realty at $531,027, and they reached the value of the personalty by deducting the latter amount from the former. The evidence returned by the referee shows, as the learned counsel for the appellants concedes, that the actual value of its personalty did not exceed $590,269. Realty and personalty must be separately valued for the purposes of taxation, and if the personalty be overvalued and the realty undervalued on the roll the valuation of the personalty cannot be sustained on the theory that the undervaluation of the realty equals ór exceeds, the overvaluation of the personalty. It is apparent, therefore, that the assessment against the relator for personalty was excessive.

Should the relator have been assessed any amount on its personalty? In People v. Ferguson, 38 N. Y., 89, an assessment was, made against the relator for $40,000 for personal property. The share capital of the corporation was $100,000, all of which had been paid in, and it had a surplus of $141,932.55. It had personalty of the value of $236,432.55, and real estate of the value of $5,500. After deducting from the .personalty the property which was not liable to taxation, there was left $46,490.55, but the relator had outstanding policies in force which it would cost-$80,000 to reinsure. The commissioners refused to make any allowance for this contingent liability, and assessed the corporation upon $40,000 for its personalty. Their action was reviewed on certiorari and affirmed at general term, but on appeal to the court of appeals it was reversed, and the commissioners were ordered to vacate their assessment on the personalty. The third section of chapter 456, Laws 1857, was considered, and it was. held that this contingent liability was not a debt, but that it was to be considered in ascertaining the actual value of the capital or property of the corporation. In People v. Commissioners of Taxes & Assessments, 46 How., Pr., 315; 1. T. & C. 611, it was stated, although the question was not involved:

“ I may add to this, in addition it would equally be the duty of the commissioners to consider the indebtedness [of the corporation] as reducing the actual value of the stock, and form their estimate on that basis. The valuation was reduced one-half—a. sum "much larger than any indebtedness of the company—and there was no ground for supposing the commissioners did not. consider such indebtedness in making the assessment.”

In People v. Commissoners of Taxes & Assessments, 31 Hun, 32,. the par value of the relator’s shares outstanding was $10,000. It owned real estate of the value of $183,000. An assessment of $10,000 was made upon the capital stock. The relator insisted that the assessment for personalty was invalid, because a mortgage,. made by another railroad corporation as security ior §4,000,000 oí bonds, covered the property of the relator, and that this lien should be considered in determining the actual value of the relator’s capital. It was held that this sum was to be considered in determining the actual value of the relator’s property, and that, as it exceeded its assets, the corporation was not liable to be -assessed for personalty. In People v. Asten, 100 N. Y., 597, the relator had a share capital of §200,000, which had been paid in, and invested in real estate, on which there was a mortgage for $80,000, given as security for the bonds of the corporation. Its real estate was valued by the commissioners at §100,000. It held stocks in other corporations of the value of §36,500. These two sums, aggregating $136,500, were deducted from the amount of the share capital, which left a remainder of $63,500, on which the corporation was assessed. The relator insisted, among other things, that the amount of its debt, $80,000, ■should have been deducted. It was held that the evidence did not show that the value fixed by the commissioners was incorrect, and the assessment was affirmed. The court, in the course of its discussion said:

“ There is no provision of law which authorizes a deduction from the capital stock by reason of the indebtedness of the company. While this indebtedness is a proper subject for consideration in estimating the value of the stock, there is no authority for its deduction from the value of the stock after the estimate has been made.”

In People v. Coleman, 16 St. Rep., 940, affirmed 112 N. Y., 565; 21 St. Rep., 576, the relator’s share capital was §300,000, and it had a gross surplus of $45,885. Its liability for unearned premiums was §24,666, which, deducted from the gross surplus, left a net surplus of §21,219, making its assets, assuming that its property outside of its net surplus was worth §300,000, $321,219. Of this amount $804,575 were invested in United States bonds, which, deducted from the total assets of the corporation, left $16,644, which . sum was the assessed value of the relator’s property as fixed by the commissioners. The special term held that the deduction by the commissioners of $24,666, the liability for the unearned premiums, was erroneous, and that the commissioners should have deducted ten per cent from the capital, §300,000, amounting to $30,000, which sum should have been added to the amount invested in United States bonds, §304,575, making an aggregate of §334,575, which latter sum should have been deducted from §345,885, the entire assets of the corporation, and imposed an assessment upon the remainder, $11,310. The general term held that the special term erred in refusing to deduct or take into account the liabilities of the corporation, and- vacated the assessment. In discussing the case it was said:

“ It is undoubtedly true that after an estimate of the value of the capital stock has been made there is no authority for the deduction of the indebtedness of the corporation, but it is also true that the indebtedness of a corporation is a proper subject for consideration in estimating the value of the stock, and in the conclusion at which the learned justice arrived in this case in determining the value of the capital stock the indebtedness of the corporation was not considered. There being no market for the stock of this company, its value was attempted to be ascertained by determining the value of its assets, and the aggregate value of its assets was $345,885.21. If, however, the corporation was indebted, this did not represent the actual value of its capital stock, because such value was reduced by the amount of its indebtedness. All the assets going to make up this aggregate had been assessed at their-full market value, no deduction whatever being made therefrom. Consequently the value of those assets was diminished in determining the value of the capital stock by the amount of the indebtedness. Therefore, deducting the amount of the indebtedness, which it is conceded amounted to $24,666.16^. the total value of the capital stock of the corporation -was $321,219.05. This deduction, however, the learned judge challenged upon the ground that it was improper to consider this indebtedness in ascertaining the value of the capital stock of a corporation liable to taxation. In this it appears that he has fallen into an error. It would be improper to deduct such indebtedness after having determined the value of- the capital stock, because that would be deducting the indebtedness twice, but in estimating the value of the stock the indebtedness of the corporation is a proper subject for consideration.”

It is alleged in the petition of the relator “ that on the second Monday of January,1892, the total gross assets of your petitioner, exclusive of real estate and roadbed, did not exceed the sum of $590,269.12.” This is not denied by the return. One of the commissioners testified before the referee, but made no claim that the debts of the corporation were taken into account in making up their estimate of the value of the capital of the relator, and the learned counsel for the appellants in his brief states that “ the gross assets of the relator, then, on the second Monday of January, 1892, amounted to $1,590,269. The respondents adopted a valuation of $1,500,000, from which they deducted the assessed value of real estate as required by law. But the respondents did not deduct the indebtedness claimed by the relator, which exceeded the actual value of its real and personal property, exclusive of franchises.” The cases cited all arose under chapter 456 of the Laws of 1857, and they are decisive of the case at bar. The question cannot be regarded as an open one in this court. But, apart from these decisions, we think the language of the statute requires the commissioners to deduct from the gross amount of the personalty of corporations their just debts in determining the amount for which they should be assessed for taxation, or that, in estimating the value of their property, they should take into account those debts. The same result is reached by either process. By the section quoted it is provided that, after making the deduction therein specified, the capital stock of corporations “ shall be assessed at its-actual value, and taxed in the same manner as the other personal and real estate of the county.” In assessing the personal property of the citizens of the county the debts owing by them. are to be deducted from the assessed valuation of such property. 1 Eev. St, 391, § 9. The sentence last quoted does not, as contended by the learned counsel for the appellants, merely prescribe the procedure by which commissioners or assessors are to impose assessments upon the property of corporations.

The mode of making assessments against corporations is provided for by the sixth and fifteenth sections of title 4 of chapter 13 of part 1 of the revised statutes, and the mode in which assessments are to be entered against corporations on assessment rolls is quite different from the mode in which they are to be entered against individuals. We think the sentence last quoted discloses an intent on the part of the legislature to provide that corporations and individuals should be assessed "on the same basis for their personalty. The theory of our statutes under which taxes are imposed is that only the personal property owned by persons or corporations is assessable, and that all property of the same kind is to be equally assessed, and, in the absence of a clear legislative expression, we cannot assume that the lawmaking power intended to impose a‘ greater burden upon corporations than upon individuals on account of the personal property owned by them. In 1885 the legislature provided in an act which relates only to the county of Kings, chapter 411, Laws 1885, § 4, that the assessors of the towns of that county in assessing the personal property of corporations should deduct their just debts. This section was amended by § 2 of chapter 202 of the Laws of 1892, and the same provision was continued. This seems to be a legislative construction of the statute in respect to the assessment of corporations for their personal property, and we can see no reason why they should have intended to have provided a different basis of assessment in the towns in Kings county than in the other counties in the state.

The order should be affirmed, with costs.

Yah Brunt, P. J„, and Parker, J., concur.


author: Ingraham J. Van Brunt, P. J.

text:
    Alfred Davies et al, Resp’ts, v. Herman F. Racer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Covenant—Restraint of trade.
    An agreement by an employe upon entering into an employment to solicit orders for custom house brokers not to engage in similar business in the same city or within fifty miles thereof, nor to interfere with his employer’s customers, for twelve months after leaving the employment is not void as in restraint of trade.
    2. Same—Consideration.
    The fact of such employment is a sufficient consideration to support the covenant.
    3. Same—Breach.
    Proof that he went into similar business within the time and territory mentioned and had solicited custom from customers of his former employer, and that some of them had ceased dealing with such employers, although they alleged that they would have ceased dealing even if they had not been so solicited, is sufficient to justify an injunction to restrain further breaches of the covenant.

      Appeal from order continuing an injunction pendente lite.

    The following is the opinion at special term":

      W. P. Burr, for app’lt; H. H. Whitman, for resp’ts.
   Ingraham J.

I see no reason for refusing to enforce the agreement of the defendant that he would not engage in the city of Hew York, or within 50 miles thereof, either directly or indirectly, in any similar business to that carried on by the plaintiffs, nor to interfere with any of the customers, directly or indirectly, for the space of 12 months after the termination of the agreement. It is conceded that the defendant was employed by the plaintiffs as a clerk to receive, influence, and procure orders and goods from shippers in Hew York city and elsewhere, and in consequence of such employment it was apparent that the defendant would obtain knowledge of the plaintiffs’ customers, and it certainly would seem to be entirely reasonable that the defendant would agree that he would not use such knowledge in any business carried on by him for a period of 12 months alter the termination of the employment. It is not claimed that the defendant was not, at the time he made the contract, of sufficient intelligence to understand what he was doing. The contract does not appear to be at all inequitable, but is reasonable for the proper protection of the plaintiffs’ business ; and the defendant cannot escape from the obligation created by the contract by saying he was told by the resident American partner that it was a matter of form. The contract is not in general restraint of trade, but it is simply to refrain from engaging in a certain business within a certain limited area, and is clearly valid. There was a substantial consideration in the employment of the defendant in such a position that he would necessarily obtain information as to the plaintiffs’ customers; and his agreement not to so act that such information could be used against the plaintiffs for a limited period after the termination of or his retirement from business relations with the plaintiffs was directly connected with the employment and the information he would receive under it. I think the defendant violated the covenant by entering into the service and employment of a firm that was a competitor of the plaintiffs in the business which was carried on at the time the agreement was made. He certainly, “ directly or indirectly,” has engaged in a similar business. The motion must, therefore, be granted, and the defendant enjoined from engaging in any business similar to that carried on by the plaintiffs at the time of the execution of the agreement, and from interfering with the customers of the plaintiffs either directly or indirectly; with ten dollars costs of this motion, to abide the event.

Van Brunt, P. J.

There seems to be little to add to the opinion rendered in the court below, but it may be necessary to notice one or two points which have been urged upon this appeal. It appears that on the 1st of June, 1887, the plaintiffs, who are engaged in the business of forwarding agents and customhouse brokers, entered into an agreement with the defendant, whereby said firm employed the defendant, as clerk, to receive, influence, and procure orders and goods from shippers in Hew York city and elsewhere, and to perform other duties, in consideration of a salary therein expressed. In and by said agreement the said defendant agreed not to engage in the city of Hew York,, or within fifty miles thereof, either directly or indirectly, in a similar business to that carried on by the plaintiffs, or to interfere with any of the plaintiffs’ customers, directly or indirectly, for the space of twelve months after the expiration of the agreement. Said agreement was continued in existence until on or about the 29th of December, 1892, when the defendant voluntarily left the plaintiffs’ employment, and engaged as a clerk with a firm in Hew York doing business similar to that of the plaintiffs, and, it is alleged, interfered with the customers of the plaintiffs by systematic solicitation of their business on behalf of said firm; and that such solicitation was in open violation of defendant’s said agreement. There was evidence tending to show the existence of this state of facts. But it is urged upon the part of the appellant that there was no evidence that the plaintiffs have suffered or will suffer such great or irreparable injury as will warrant the granting of this injunction. It is undoubtedly true that the evidence in this regard is slight, but there certainly is evidence from which the conclusion might be drawn that the plaintiffs may suffer injury from the actions of the defendant. It appears beyond contradiction that he is soliciting custom from those who have been accustomed to deal with the plaintiffs, and that some of these customers have ceased dealing with the plaintiffs, although they allege they would have ceased dealing with the plaintiffs even though the defendant had not solicited the change. It is naturally difficult to establish the effect of the mental operations which have brought about the change in the action of these customers, but it is apparent that there has been a plain and willful violation upon the part of the defendant of the covenants contained in his agreement; and it requires but slight evidence of injury to justify the court in restraining such acts, it being apparent that it is impossible to calculate what may be the results of such action.

It is also urged that the covenant is in restraint of trade, and was not supported by a good consideration, and unreasonable in view of the circumstances disclosed, and therefore void. As to the agreement being in restraint of trade, it seems to be difficult to support any such proposition in view of the principles enunciated by the court of appeals in the case of Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47, where a very much broader contract was enforced. As to the want of consideration, the fact of the employment was sufficient consideration. It enabled the defendant to become familiar with the customers and .the trade of the plaintiffs, and they had a right to protect themselves by such a covenant against such knowledge being used to their disadvantage. As to the policy of the law being against the restraint of clerks, mechanics and apprentices from pursuing their profession or employment in any particular place, it seems to be sufficient to say that no rule laid down in this state has been called to our attention which in any way militates against the validity or propriety of such an agreement as forms the subject-matter of this action.

We think, therefore, thatthe order should be affirmed, with ten dollars costs and disbursements.

Follett and Parker, JJ., concur.


text:
    Mary Talbot, App’lt, v. Stephen Van Rensselaer Cruger et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)
    Fbaxjd—Release.
    One who has been induced by iraud to execute a release of property, upon discovering the fraud, is not confined to an action to set aside the release, but may treat it as actually surrendering the property and proceed directly against the persons whose fraudulent conduct induced the execution of the paper to recover the damages sustained thereby.
    Appeal from judgment dismissing the complaint.

      J. Baldwin Hand, for app’lt; Henry H. Man, for resp’ts.
   Parker, J.

The complaint alleges in substance the making of an agreement between Hyland and Field, by which certain buildings to be erected by Hyland on Field’s land should be personal property; their erection by Hyland in pursuance of such agreement; a subsequent sale of such structures to the plaintiff; thereafter, the conveyance of the lands on which the buildings were situated to the defendant Coffee; the execution and delivery by the plaintiff of a writing in form surrendering to the defendant. Coffee, for a consideration of thirty-five.dollars, such buildings. The plaintiff charges that the execution and delivery of this writing were procured by the fraud and deceit of the defendants. She avers that the defendants, other than Coffee, represented to her that they were the agents of Coffee in respect to the land upon which her buildings were situated, and requested her to-accept a new lease from Coffee, on the same terms on which she had leased the lands from the prior owner, and that she acceded to the request; that subsequently a letter was received from the defendants, directed to the plaintiff and her husband, which read as follows: “Mr. & Mrs. Talbot: We have alease ready for you to sign, if you both will call at this office,” which letter was signed by the defendants Cruger & Co. In response to the letter,. she visited the defendants' office and was there presented with a paper for signature, which the defendants represented to her was a lease of the land of Coffee. Being unable to read or write, she was wholly dependent upon the representations of the defendants; and believing the paper to be a lease, as represented, she executed it by making her mark. She further avers that shortly thereafter, and about the 14th day of July, 1891, Coffee commenced a proceeding in a district court to dispossess her. Plaintiff answered therein, not disputing title of Coffee to the land, but claiming the ownership of the structure, and the right to remove the same.

The trial took place on the 21st day of July following, at which time Coffee produced and put in evidence, in his own behalf, the release which plaintiff asserts she was fraudulently induced to sign, and then, for the first time, she learned the true character of the paper which she had executed. In pursuance of a judgment of the court thereafter rendered, plaintiff was deprived of the possession of the premises, including the buildings and structure which she had purchased from Hyland. By reason thereof the complaint, alleges that the plaintiff sustained damages, and judgment therefor is demanded against the defendants. The cause being moved for trial at a circuit court, a jury impaneled, and the case opened to-the jury by plaintiff’s counsel, a motion theretofore made to dismiss the complaint was renewed, and the complaint dismissed on the opening, on the ground that the release barred a recovery. It, was the view of the court that the release, if fraudulently procured, should be first set aside before damages could be recovered; that until it should be declared void and of no effect by a judgment of the court, an action for damages, on the ground of fraud in procuring its execution, was barred. Plaintiff’s counsel, however, insisted that the plaintiff did not propose to set the release aside, but was seeking, instead, to recover the damages sustained by reason of the fraud practiced upon her. The court had in mind, and cited from recollection, Stono v. Weiller, 128 N. Y., 655; 40 St. Rep., 434, but we think there is a marked distinction between the two cases. In Stono’s case, it is true, the court held that it was necessary to set the release aside before a recovery of damages could be had, but the execution of the release in that case did not constitute in whole or in part the basis of the cause of action alleged in the complaint. On the contrary, subsequent to the happening of the events which gave rise to the cause of action sought to be maintained, the plaintiff therein had distinctly released the cause of action pleaded. The court held at circuit that inasmuch as the release had to be set aside before there could be a recovery, the case belonged on the equity side of the court,, and sent it to the special term for trial.

The court deemed that the proper disposition to make of this case, regarding the Stono case as a precedent for it. In this we think the court was mistaken. This release does not purport to> release the cause of action averred in the complaint. On the contrary, it constitutes a part of the very foundation of the cause of action alleged. This is not an attempt to recover the property which the instrument purports to release, but proceeds entirely upon the theory that, by reason of the fraud practiced by each of the several defendants, the plaintiff was induced to execute an instrument surrendering her property to another, to her damage. If such was the fact, and we must assume it was, upon the discovery of the fraud she had her choice of one of two remedies, either to proceed by action for the recovery of the possession of the property, in which the release could have been attacked on the ground of fraud, if pleaded by the defendant; or to treat the instrument as actually surrendering the property, and to proceed directly against the parties whose fraudulent conduct had induced the execution of the paper. She chose the latter remedy, as was her right. Griffing v. Diller, 50 St. Rep., 435; Roome.v. Jennings, id., 335, and cases cited; 5 Wait Act. & Def., 515, are cases differing in their facts from the one under consideration, but nevertheless illustrative of the rule properly applicable.

An effort is made by the respondent to bring about an affirmance of the judgment of the court below on the ground that the coinplaint does not aver the necessary facts to constitute the cause of action which the plaintiff attempted to allege in her pleading. It is quite true that there are averments in the complaint which could more appropriately be employed in alleging an altogether different cause of action than the one attempted. Still, we think the purpose of the pleader is not only apparent throughout the complaint, but it contains the allegations essential to a recovery on the ground of fraud, to wit, representation, falsity, scienter, deception and damage. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Eollett, J., concur.