author: McCarty, J.

text:
    Hannah Isaacs, Resp’t, v. John H. Flahive, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    1. False imprisonment—Officer acting without warrant.
    Where there is at the time no breach of the peace, but simply the question of the possession of a trunk, the plaintiff has a right, as against a. policeman who is there without legal process, to protect and defend her property or the possession of any property to which she claims a right, and the fact whether plaintiff is a boarding house keeper and has a license to keep the same, or has a right to retain the trunk in dispute, is entirely immaterial.
    2. Assault.
    Any assault or act of violence committed by the policeman on such premises in taking the trunk, is at his peril and he is liable in damages therefor.
    3. Trial—Charge.
    The trial justice is not bound to charge every proposition of law requested, even though correct, unless it is pertinent to the issues and has not been covered by his previous charge.
    Appeal from a judgment in favor of plaintiff.

      Morris Goodhart, for app’lfc; Maurice Mayer, for resp’t.
   McCarty, J.

About three or four weeks prior to the 16th day of February, 1894, one Minnie Raphael, a young woman, not then of age, was brought by a Mr. Goldsmith to the house or apartments of the plaintiff, at Ho. 2075 Second avenue, in the city of Hew York, where she boarded for about three weeks. She left without notice, leaving behind her trunk. The price agreed upon for her board was six dollars per-week, none of which has at any time been paid. Ten days after she left, and on the 16th day of February, 1894, the defendant, who was a police officer, assigned to special duty at thp Institution of the Hebrew Sheltering Guardian Society, went to the plaintiff’s premises, and, against the will and protest of the plaintiff, forcibly removed the trunk, at the same time assaulting the plaintiff, who resisted its removal. Subsequently, and as a part of the same transaction, the plaintiff continuing to resist his attempts to take the trunk, he arrested the plaintiff, and at the station house charged her with assaulting him, a police officer, while in the discharge of his duty. The defendant had gone to the plaintiff’s residence without any warrant or other legal process of any kind, and simply under direction of the superintendent of the Hebrew Sheltering Guardian Society, who told him to go and get the trunk. Mrs. Isaacs, the plaintiff, after her arrest, obtained bail, and was released at nine o’clock that evening. She was arraigned the following morning, before Police Justice Simms, and duly and promptly discharged. This action is brought to recover damages sustained by her both for the assault and for false imprisonment, the complaint setting forth two several causes of action therefor.

Whether the plaintiff was a boarding house keeper, and had a license to keep the same, or has a right to retain the trunk in dispute, in view of the facts in this case, is entirely immaterial. It is certain and apparent that there was a dispute in regard to the possession and right of possession of this trunk between the plaintiff, on one side, and Minnie Eaphael and the defendant, on the other; that the plaintiff held the trunk, and claimed a right to it, and refused voluntarily to surrender it.. This was in the apartments of the plaintiff, and the defendant was there without legal process. At this juncture the defendant was no better, greater, nor more powerful than any other citizen, and could not determine the rights of these disputants, nor assist one against the other. There being at this time no breach of the peace, but simply the question of the possession of the trunk, and he there without warrant' or legal process, the plaintiff had a right to protect and defend her property, or the possession of any property to which she claimed a right. Any assault or act of violence committed by the defendant on these premises in taking the trunk, as above set forth, was at his peril, and for which he is liable in damages. His duty was .to advise and require Minnie Eaphael tp procute either a summons or warrant from a criminal court, or to resort to one of the many remedies provided by law. Then the rights of all concerned would have been finally determined and settled. He saw fit, however, to be judge and executioner, and must take the consequences.

The question of probable cause in this action for false imprisonment was properly left to the jury.

The trial justice was not bound to charge every proposition of law requested, even if correct, unless it was pertinent to the issues, and had not been covered by his previous charge. We think his charge was clear, proper, able, and correct, and, if' anything, very favorable to the defendant.

The jury having found against the defendant on the facts, which were disputed and strongly contested, we cannot disturb the verdict; and, finding no errors, this judgment must be affirmed, with costs. All concur.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    John Hilliard, Resp’t, v. Charles C. Smith, App’lt.

      (New York City Court, General Term,

      Filed October 29, 1895.)

    1. Evidence—Parol.
    Where the purpose for which a written contract is made may rest in a collateral arrangement, it may be shown by paroi evidence that the design is different from that which its terms alone may indicate.
    2. Same.
    Where the words used, in their application to an instrument of which they are a part, are not entirely intelligible, oral evidence of the circumstances attending its execution and collateral agreement in regard thereto, may, as between the parties, be admissible to aid in the interpretation in the application of the language so used.
    Appeal from a judgment in favor of plaintiff.

      Charles C. Smith, in pro. per.; A. J. Provost, for resp’t.
   McCarthy, J.

Both parties in this action having moved for a direction of a verdict in their favor, they concede that the question involved is one of law. It is not a question as to the direct liability of the defendant, but to the admission of evidence offered by the defendant for the purpose of changing that liability. The defendant was the executor of the will of Adaline L. Gregg, deceased, and the plaintiff was the husband of one of the legatees of the estate. The following took place at the trial:

The following is the testimony and proceedings upon the trial:

Mr. Millikin appeared for the plaintiff. Mr. Morris appeared for the defendant. A jury to try the issues was duly empaneled, and the case opened to the jury by a statement of the issues to be tried by Mr. Mil liken, whereupon Mr. Morris moved the court to dismiss the complaint on the pleadings on the ground that the defendant in this action is sued personally.

“ The action is against Charles C. Smith personally, and the complaint alleges that the moneys loaned were so loaned to him as executor of the estate of Mrs. Gregg, deceased, and for the purpose of carrying out certain provisions of the will under which he was appointed executor by one of the parties in interest under the will. The Court: Can an executor borrow ? Defendant’s attorney : He cannot. The Court: Then why is he not individually liable ? The word ‘ executor ’ is merely descriptive. Defendant’s attorney: He would be liable, unless these parties in interest advanced him the money for the express purpose of making it a charge against the estate for their own benefit. The Court: It cannot be done. Defendant’s attorney: In the case of Schmittler v. Simon, 114 N. Y. 176; 23 St. Rep. 160, it seems that the executor signing an instrument of that character can explain that it was done for the purpose of the estate, and for the purpose of making it a charge on the estate; particularly when the party advancing the money is himself interested in the estate, and may be so charged in an accounting. The Court: That is, where it is in the scope of the executor’s powers and duties to borrow money. That has been held repeatedly, and it has been held repeatedly that when an executor, administrator, or any other person acting under a.trust creates a liability which, he has no power to create in his official capacity, then he is individually liable. (Motion to dismiss denied. Exception to defendant) Defendant’s attorney: I move to dismiss the second cause of action on the same grounds. I think there it is more explicitly set forth. (Motion denied. Exception to defendant.) Plaintiff’s attorney: Do you deny the receipt of the money, Mr. Smith?" Defendant’s attorney: No. Defendant admits that he received the money, and that the same has not been paid to the plaintiff. Plaintiff’s attorney: The interest is forty-three and 50-100 dollars, and the principal is the sum of one thousand five hundred dollars. (Plaintiff rests.)”

Charles C. Smith, the defendant, being duly sworn, testified as follows: “ I am the executor of the estate of Adeline L. Gfregg. I know the plaintiff. He is the husband of one of the legatees of the estate. I received from him the moneys mentioned in the complaint, viz. the sum of fifteen hundred dollars in all. Q. Will you state what the conversation was between you and the plaintiff at the time you borrowed these moneys ? Plaintiff’s attorney: I object to it as incompetent, irrelevant, and immaterial. The paper shows what it was. (Objection sustained. Exception by the defendant.) Q. Now, for what purpose did you borrow these moneys from him ? (Objected to as incompetent, irrelevant, and im-' material. Objection sustained. Exception by defendant.) Q. Did you pay him any interest on these loans ? A Yes. Q. Did you take any receipts for the interest so paid ? A. I did. Q. Will you please look at these receipts, and say what they are ? A. These are receipts for the interest moneys paid' on these loans to the plaintiff. Defendant’s attorney: Nows I offer them in evidence. Plaintiff’s attorney: I object to their being introduced in evidence. Anything in regard to the use for which the money was borrowed I object to, as being entirely irrelevant and immaterial. As to the fact of paying interest, I do not object. • Defendant’s attorney: We offer them in evidence for the other purposes. Plaintiff’s attorney: And not for the purpose of proving payment of interest. Defendant’s attorney: No, sir; not at all. Plaintiff’s Attorney: Then I object to them. The Court: For what purpose do you offer these receipts ? Do you offer them to show for what purpose the money was loaned ? Defendant’s Attorney: To show the purpose for which the loan was made. (Objection sustained. Exception to defendant.) Witness: I would like to say that at the time the loan was made it was understood between the plaintiff and myself that there was'to be no personal liability assumed by me in taking these loans. It was expressly understood, when these loans were made, that it was to be charged to the estate, and that there was no personal liability assumed by me at that time. Defendant’s Attorney : I move to strike that out. The Court: Motion granted, on the ground that any such agreement could not be binding on the estate. Defendant’s Attorney: I move that your honor direct a verdict for the defendant on the ground already stated, namely, that the action is brought against Charles C. Smith individually, on two notes made by him as executor of the estate of Adaline L. Gregg, for money advanced to him as such executor by one- of the beneficiaries of the will for the purpose' of enabling him to carry out the provisions of the will; and that he is not individually liable, but, if liable at all, only as executor, and then only ‘ liable to an accounting as such executor. The Court: Didn’t I understand you to say- a moment ago that he was not a beneficiary under the will; that he was simply the husband of a legatee ? That was the statement made on the record: Witness: He is the husband of the legatee ; yes. The Court: The motion is denied on the ground that the defendant admits that the plaintiff is the husband of a legatee, not a party in interest, and in no. way interested in this estate. (Exception by defendant.)”

At this point defendant’s attorney has the four receipts marked Exhibits 1 to 4, inclusive, marked for identification as follows:

“ Exhibit 4.

“ Received, Brooklyn, N. Y., Dec. 19th, 1893, from Charles C. Smith,, executor, forty dollars, for six months’ interest on five hundred dollars loaned to Gregg estate at six per cent., being fifteen dollars due to November 1st, 1893, and for six months’ interest on one thousand dollars loaned to Gregg estate at five per cent., due November 23, 1893, being the sum of twenty-five dollars. John Hilliard.”

“ $40.00.

“Exhibit 3.

“ Received,' Brooklyn, N. Y., May 10, 1894, from Charles C. Smith, executor, fifteen dollars for interest due May 1st, 1894, on five hundred dollars loaned to him as execntor of the estate of Mrs. A. L. Gregg, deceased.

“Received payment, John Hilliard.

“ $15.00.”

“ Exhibit 1.

June 8th, 1894.

“ Received from Charles C. Smith, executor, twenty-five dollars interest due on one thousand dollars loaned by me to the estate of Mrs. A. L. Gregg, deceased, due May 23, 1894.

“ $25.00. John Hilliard,

“Per Josephine A. Hilliard.”

“ Exhibit 2.

“ Received, Brooklyn, December 1st, 1894, from Charles C. Smith, executor, forty dollars, being fifteen dollars interest due November 1st, 1894, on five hundred dollars, and twenty-five dollars interest due November 23, 1894, on one thousand dollars, loaned to the estate of Mrs. A. L. Gregg, deceased.

“ Received payment, John Hilliard.

. “$40.00.”'

“ Plaintiff’s Attorney: 'I move for a direction. The Court: I will grant a direction in favor of the plaintiff. Defendant’s Attorney: We except on the ground that at the time the loan was made it was expressly understood between the plaintiff and the defendant that there was to be no personal liability assumed by the defendant.” »

By direction of the court, the jury found a verdict for the plaintiff for $1,543.50. An allowance of five per cent, was .granted by the court.

The general rule is that, when an agreement is reduced to writing, it is, as between the parties, deemed to merge and overcome all prior or contemporaneous negotiations and declarations upon the subject, and that no oral evidence is admissible to vary, explain, or contradict its terms. We think the trial justice was in ■error in the exclusion of these receipts, and evidénce of the conversation as to the purpose of the giving and receiving the money ■claimed and admitted to have been received. This would not be either the varying, explaining, or contradiction, but showing rather a collateral arrangement between the original parties. In the language of Bradley, J., in Schmittler v. Simon, 114 N. Y., at page 184; 23 St. Rep. 160:

“ But it may be that it would have been admissible for the defendant to prove * * * that the purpose for which a written contract is made may rest in a collateral arrangement, which may be shown, to the effect that the design is different from that which its terms alone may indicate. Grierson v. Mason, 60 N. Y. 394; Chapin v. Dobson, 88 id. 74.”

And again, at page 185, 114 N. Y., says, speaking of the opinion of the court of appeals in Schmittler v. Simon, 101 N. Y. 554, between the same parties:

“It does not appear what view the court may have taken of the •admissibility of evidence of the.facts, and of the fact itself, if it then appeared that the payee and the plaintiff, when they received the draft, had been advised that it was drawn and accepted to be paid out of the drawer’s interest represented by the defendant as executor.”

The fact that the defendant was in the receipt designated as >executor, and that he in some of them signed and designated himself as executor of Mrs. Adaline L. Grregg, deceased, does not, of itself, import any other than a personal relation of the defendant to the instrument, as the word “ executor ” annexed to his name would presumptively be treated merely as descriptive of the person. But it might be given some substantial significance by other provisions, if those were such as were required in the instrument; and in a proper case this might be aided by extrinsic facts. In such case it is open to explanation by evidence to show that the purpose, as understood by the parties to the transaction, was that the party so executing’ the contract intended to assume no personal liability. The admission of this proposed evidence may not ■avail the defendant, but we think it admissible; for where the words used, in their application to an instrument of which they are a part, are not entirely intelligible, oral evidence of the circumstances attending its execution, and collateral agreement in regard thereto, may, as between the parties, be admissible to aid In the interpretation in its application of the language so used. For these reasons we think the rejected evidence referred to should have been received as bearing upon the understanding of the relation and the character of the liability the defendant assumed. Judgment is therefore reversed, and a new trial granted, with costs to the appellant to abide the event

All concur.


author: Bischoff, J.

text:
    Irene A. Hyde, Resp’t, v. James Wilmore, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    Landlord and tenant—Covenant—Quiet enjoyment.
    The lessor is not liable to the lessee of portion of a building for the negligence of the servants of an independent contractor .engaged in erecting an addition to the building, when such erection is not a breach of bis-implied covenant with the lessee for quiet enjoyment.
    Appeal from a judgment in favor of the plaintiff.

      Louis F. Doyle, for app’lt; Eliot Norton, for resp’t.
   Bischoff, J.

Plaintiff, the tenant of the second and third floors of the building No. 24 East Twenty-Fourth street, brought this action against the defendant, her lessor, for injuries to certaiq personal property occasioned by the injection of lime dust upon the demised premises by certain workmen when engaged in erecting a one-story extension to the building. In the written lease defendant reserved the right of access to a bath room in the rear' of the second floor and the damage alleged resulted, principally, from the acts of the workmen when using the hall and bath room as a means of access to the work. The record satisfies us that these workmen were the servants of an independent contractor, and for their acts, if tortious, such contractor, and not the defendant, is liable, unless it be made to appear that, by the act of erecting the extension, defendant was chargeable with a breach of the implied covenant of quiet enjoyment which attaches to every lease. But this implied covenant goes no further than that the tenant shall not be disturbed in the beneficial enjoyment of the premises by the erection of a nuisance by the landlord, or suffer through the failure of his title, Duff v. Hart, 40 St. Rep. 676; Rotter v. Goerlit, 34 id. 1001; and we do not think the facts in the case at bar justify a finding that a nuisance, as against the plaintiff, was created by the bare undertaking of the work in question. No invasion of plaintiff’s apartments was necessitated thereby, and it does not appear that the loss of any beneficial enjoyment of the demised premises must needs have resulted from the building of this extension. It may be that plaintiff neglected to take ordinary precautions against the intrusion of dust from the rear, but this could not affect the defendant, and for the negligence, if any, of the contractor’s servants a recovery is not to be had in this action.

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


text:
    Minna Wechselmann, App’lt, v. David Trottina, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    Landlord and tenant—Assignment.
    Where the lease of premises was entered into by the plaintiff’s husband, the fact that he subsequently became the agent of his wife in the business theretofore carried on upon the premises by himself as principal, does not establish that she was the assignee of the term, or that she otherwise assumed any obligation under the lease.
    Appeal from a judgment for defendant on his counterclaim^ and against plaintiff on her alleged cause of action.

      Herbert L. Hinds, for app’lt; M. Strassman, for resp’t.
   Bischoff, J.

This suit was brought for the value of goods sold and delivered, and the defendant, after a general denial pleaded a counterclaim upon an assigned claim for rent of the premises occupied by the plaintiff. The justice below awarded judgment upon the counterclaim, and found against the plaintiff upon her alleged cause of action. There was sufficient evidence to support the defendant’s claim that payment had been made for the goods in suit, but the record does not uphold the finding in his favor upon the counterclaim. The lease of the premises was entered into by the plaintiff’s husband; and, while it appears from his testimony that he subsequently became the agent of his wife in the business theretofore carried on upon the premises by himself as principal, there is nothing to show that the plaintiff was the assignee of the term, or that she otherwise assumed any obligation under the lease.

J udgment reversed, and new trial ordered, with costs to the appellant to abide the event.


text:
    Lena Kopetzky, Resp’t, v. Metropolitan Elevated Railroad Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Trial—Striking out evidence.
    A referee may grant plaintiff’s motion to strike out specific evidence, to the admission of which objections and exceptions have been taken by defendant’s counsel.

      2. Witness—Credibility—Contradictory statements.
    A witness is not necessarily discredited by contradictory statements as to immaterial matters.
    3. Elevated railway—Evidence.
    In an action against an elevated railway company for damages and an alternate injunction, it is not error for the referee to refuse defendants’ request to find that “ the alleged inconvenience or injury resulting from the maintenance or operation of defendants’ railroad is due in part to the noise occasioned by the trains on said railroad, ‘ ‘ where the recovery is based merely upon the decline in rents and of fee value, due to the numerous and unspecified causes which were the effect of the road as maintained and operated.”

      4. Tbial—Request to chab&e.
    A. referee is not required to pass upon a request to charge, where it deals with an abstract proposition and the matters involved aré immaterial.
    Appeal from a judgment in favor of plaintiff.

      Julien T. Davies and George T. Aldrieh, for app’lts; Abraham Gruber and Ralph Shaw, for resp’t.
   Bischoff, J.

Plaintiff brought this action for damages and an alternative injunction to restrain the operation of defendants’ elevated railway in front of her premises, situated in Second avenue, between Sixtieth and Sixty-first streets. From a judgment rendered in her favor the. defendants appeal and present the following points:

1. That the damages awarded are excessive. As to this we must hold that the testimony given by the witness Freund, with regard to fee values, and Kopetzky, with regard to the actual rents received, taken together with the other evidence of the state of rents in the locality, and of the ratio of fee to rental values, sufficiently supports the finding of the referee. Defendants’ evidence would, if adopted as the true basis for computation, make the award appear excessive, but we find no injustice in the judgment as based upon .the plaintiff’s 'evidence.

2. That the referee erred in granting the plaintiff’s motions to strike out specific evidence, to the admission of which objections and exceptions had been taken by defendants’ counsel. It was certainly within the power of the referee to take this course. American Bank Note Co. v. Metropolitan El. Ry. Co., 63 Hun, 506; 45 St. Rep. 322, and we must assume that he determined the issues irrespective of such evidence. Nette v. Railroad Co., 34 N. Y. Supp. 233; Chesebrough v. Conover, 140 N. Y. 382; 55 St. Rep. 728. The remaining evidence is amply sufficient to support his determination.

' 3. That plaintiff’s witness Kopetzky should have been discredited by the referee, and hence the proof as to rental damage should have failed. This contention is based upon Kopetzky’s direct contradiction of his own testimony, subsequently during the trial, upon a point immaterial to the issue. It certainly would appear that this witness deliberately swore to a falsehood in this instance, but we are not to say that his entire testimony was necessarily to be rejected for that reason. He was not contradicted upon the question of rents received, and was in a measure corroborated by the testimony of the plaintiff’s expert as to.fee value and its ratio to rental value.' The referee might have discredited the testimony had he seen fit, but, as appears, he did not. The rules applicable to the facts in this ease do not call for our denunciation of tile decision upon this ground. Lee v. Chadsey, *41 N. Y. 545; Dunn v. People, 29 id. 529 ; Deering v. Metcalf, 74 id. 501; People v. O'Neil, 109 id. 266; 14 St. Rep. 829.

4. That it was error for the referee to refuse defendants’ request to find that “ the alleged inconvenience or injury resulting from the maintenance and operation of defendants’ railroad is due in part to the noise occasioned by the trains on said railroad.” It is claimed that, there being uncontradicted evidence in support of this proposed finding, it should have been so found, in order that a deduction for the damage thus sustained might have been made, since a recovery for damages by reason of noise is not to be had in this class of actions. American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252, 273; 41 St. Rep. 531. But what ■deduction ? There was no proof as to the amount of injury flowing from this cause, and while, as in the case last cited, it must be held that an affirmative judgment, based in part upon an express item of damage for noise, requires modification in so far as to strike but that item, we cannot see how the finding of defendants’ request could have availed in this case, the recovery being based merely upon the decline in rents and of fee value, due to the numerous and unspecified causes which were the effect of the road as maintained and operated.

The refusal of the requests to find that the territory in the vicinity had been largely built up since the construction of this railway, and that such condition was caused by its operation presents no error. These matters were immaterial, and the requests dealt with an abstract proposition, which the referre was not required to pass upon. Moreover, it is impossible to say that the result would have necessarily been affected had the findings been made. Baldwin v. Doying, 114 N. Y. 455; 23 St. Rep. 759. If of any avail, the findings related solely to the question of general benefits, and there was nothing upon which an allowance for such benefits could have been based; the plaintiff’s evidence with regard to" values being found acceptable by the referee, and a substantial decrease of value being thereby shown. The rule stated in the Nette Case, supra, and in Struthers v. N. Y. E. Railroad Co., 5 Misc. 239; 54 St. Rep. 785, applies.

The judgment must be affirmed, with costs.

All concur.


text:
    Thomas Roberts Stevenson Company, App’lt, v. William J. Tucker et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Appeal—First instance.
    In action against a partnership, an objection that the evidence does not show that the alleged counterclaim existed in favor of all the defendants, cannot be raised for the first time on appeal.
    2. Trial—Objections.
    A motion merely to dismiss a counterclaim or to slrike out evidence of a defendant, on the ground that he did not show that he was entitled to participate in the alleged counterclaim, is not an objection to the absence of-evidence of an assignment to all of the defendants by those in whose favor the alleged counterclaim originally existed.
    3. Principal and agent—Authority—Ratification.
    Evidence that the defendant, upon an inquiry for the manager of the plaintiff company, was directed by one of plaintiff’s clerks to another person apparently in charge, and that defendant had acted and been paid commissions under a prior similar contract with such person, and that the manager said that he would stand by any contract with him, is sufficient to prove either such person’s authority to contract with defendant for the commissions, or that his contract was ratified.

      Appeal from a judgment entered on a verdict in favor of the defendants upon a counterclaim.

      Phillips & Avery, for app’lt; Lamont McLaughlin, for resp’ts.
   Bischoff, J.

Plaintiff brought this action to recover the purchase price of a boiler and range sold to the defendants. The latter, contesting the value of the chattels, as asserted, interposed a counterclaim for commissions alleged to have been earned, under a contract between them and the plaintiff, by the terms of which they had agreed to sell ranges for the latter, and had sold eighty-five, at a commission of one dollar for each range sold. .

Abandoning other questions, appellant contends only that- no recovery upon the contract for commissions should have been had. It is urged that the defendants’ counterclaim accrued to them as copartners, if at all, and that the proof established the right of Tucker alone under the contract for commissions, as alleged. Upon the trial this objection might have been presented and properly sustained, but it was not then presented. Had it been, proof of the assignment of the claim from the individual to the partnership might well have been forthcoming. The question is raised too late upon appeal. Haines v. N. Y. C. & H. R. R. R. Co., 145 N. Y. 235 ; 64 St. Rep. 717. The motion to dismiss the counterclaim, without more particularity, certainly did not raise the point now presented, nor did the motion to strike out defendant McNeil’s testimony, upon the ground that “he had not shown that he was entitled to recover, or had any participation in this commission.” This objection merely called attention to the admissibility of the evidence, and had no bearing upon the counterclaim itself. The exception to the denial of this mption presents no error. That McNeil had not been shown to be a party in interest constituted no valid objection to him as a witness, and the evidence was competent and relevant upon the issue whether or not the contract for commissions had been made. Further, the motion was to strike out all the testimony, a large part of which bore directly upon the plaintiff’s cause of action, and it would have been erroneous to grant it.

A further point is made that authority in the agent or agents with whom this contract for commissions was made was not proven. This agreement, according to the defendants’ evidence, was made with plaintiff through one Lovejoy. Defendent Tucker testified that, upon inquiry at the plaintiff’s place of business for the manager, he was referred by one of the clerks to Lovejoy, “who from all appearances had charge.” Substantially to this effect was the testimony of the defendant McNeill. Tucker further testified that he had, previous to the transaction in suit, had other dealings with Lovejoy, and had been allowed and paid a commission or discount of one dollar for each range sold ; also, that “Mr. Smith said he was willing to stand up to any contract made by Lovejoy with us.” Since Mr. Smith was conceded by the appellant to have been at that time its manager, the above might be taken either as evidence of a ratification, or as further proof of Lovejoy’s authority. Other evidence appears, which, though somewhat equivocal, might have been properly understood by the j ury as showing a ratification of Lovejoy's acts. We find no reason for disturbing the result arrived at by the jury. Judgment affirmed, with costs.

All concur.


author: Gtegerich, J.

text:
    James McLaughlin, Resp’t, v. John F. Harriott, as Property Clerk, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895)

    1. Appeal—Review—Reversal op pacts.
    Upon an appeal from the judgment of a district court, the common pleas may reverse upon the facts where injustice had obviously been done. So held, as to a judgment for plaintiff in an action of conversion in the detinet, founded on the failure of the property clerk of the police department, to return money taken from plaintiff’s assignor, who was arrested for extradition on a charge of robbery, where it appears that the assignor was convicted in the foreign court for the robbery, and that the identical money taken from him was used in evidence against him, and directed to be paid over to the person robbed whose money it was adjudged to have been.
    3. Conversion—General issue—Title.
    In an action for conversion, as in the detinet, proof of title in a third party may be given under the general issue.
    Appeal from a judgment for plaintiff rendered on a trial before the justice, without a jury.

      Ghase Mellen, for app’lt; Louis S. Finn, for resp’t. ,
   Gtegerich, J.

The present case demonstrates the value of the rule that, upon an appeal from the judgment of a district court, this court may reverse upon the facts where injustice has obviously been done. Code Civ. Proc. §§ 3063, 3213; Curley v. Tomlinson, 5 Daly, 283 ; Brown v. Sullivan, 1 Misc. Rep. 161; 48 St. Rep. 685; Schumacher v. Waring, 7 Misc. Rep. 161; 57 St. Rep. 539. The action is conversion against the property clerk of the police department, founded upon his failure to return upon demand a sum of money taken from the person of one John O’Connell, at a time when the latter was arrested in this city for extradition on a charge of robbery. His trial in a criminal court of the state of Pennsylvania resulted in his conviction. The identical money in suit was made use of physically as evidence against him, and such money was by the judgement of the court declared to be the property of one David T. Slocum, the person robbed, and directed to be paid over to him. These facts are undisputed, and the judgment of the foreign court, duly authenticated, appears in evidence.

The respondent’s counsel seeks to defend the recovery below through reliance upon the proof that plaintiff (O’Connell’s attorney at the time of the arrest) became the assignee of the sum in question, by assignment from O’Connell, after such sum had been forcibly taken from the person of the latter when arrested. The argument appears to be that a prima facie case of trespass was made out against the arresting officer, in' favor of the prisoner, O’Connell, and that the question of title to the money was immaterial. Kissam v. Roberts, 6 Bosw. 154. But, waiving the questians raised by the fact that such officer was not the defendant, that the act was done in performance of official duty, and that the trespass, if any, antedated the assignment of the cause of action to the plaintiff, it need only be said that the cause of action pleaded and sought to be proven was simply conversion, as in the detinet, in which action proof of title in a third party may be given under the general issue. Griffin v. Railroad Co., 101 N. Y. 348. That there was no substitution of causes of action by consent, through failure to object to the evidence, follows from the fact that such evidence was not objectionable under the pleadings, since possession by O’Connell when arrested bore upon the very material issue of title,—in fact, was all that was shown upon the question by the plaintiff. The inquiry resolves itself into a matter of fact, whether or not the defendant established his defense under the denial of plaintiff's title; and that plaintiff’s assignee had absolutely no title nor right of possession is beyond argument, upon the evidence adduced. In no way was thé judgment of the foreign court sought to be attacked, and it was to be accorded full faith and credit. Dunstan v. Higgins, 138 N. Y. 70; 51 St. Rep. 710; Taylor v. Bryden, 8 Johns. 133 ; Story, Confl. Laws, §§ 592, 593.

The money taken from O’Connell was proven to be that produced before the foreign court by the testimony of the witness Nugent, the police officer who made the arrest and identified the money upon the criminal trial; and there was no ground upon which the uncontradicted testimony of that witness could reasonably have been disregarded by the justice below. The only conclusion to be reached was that plaintiff’s assignee had no right or title to or interest in the fund assigned, and we must hold that, from an affirmance of this judgment, a reckless perversion of justice would result.

For these reasons, the judgment should be reversed, and the complaint dismissed, with costs.


text:
    Henry Dater, Resp’t, v. Thomas Fletcher, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Negligence—Contributory—Question of fact.
    Where the jury is well authorized, upon the proof adduced, to draw the-inference that the accident was due solely to the recklessness of the defendant’s servant, the question is not one of law, hut of fact.

      2. Same.
    Where vehicles are about to cross each others path, the duties of the parties are correlative, and neither is called upon to anticipate the negligence of the other; nor does the failure of one party to exercise due care cast an additional duty of diligence upon the other.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Artemas B. Smith, for app’lt; Hldon Bisbee, for resp’t.
   Bischoff, J.

This action was for damages - resulting from a collision between the vehicles of the respective parties, and the-case went with the plaintiff. Upon this appeal, the defendant relies upon but one- ground,—namely, that the plaintiff’s contributory negligence was established as a matter of law; and for this reason, and because we find no other ground upon which the appeal could well prevail in any event, the question is to be disposed of on that point.

The facts which the evidence amply supports follow: Plaintiff was driving his carriage at a walk, proceeding in a southerly direction, from the entrance of Central- Park at Eighth avenue, to the intersection of Broadway with the “ circle,” the latter a large open space, covered with concrete and sand, deadening the sound of horses and vehicles which might be driven thereon. The entrance to the park abutted upon the circle, and plaintiff's course was in a line across it, and called for his traversing at right angles the tracks of the Cross-Town Railway, a double-track street railroad proceeding along Fifty--Uinth street, east and west, and crossing the circle. Defendant’s servant turned his wagon, driven at a very high rate of speed, into the circle, and upon the southerly track of the railway, when the plaintiff’s horse had reached the northerly track ; the vehicles being at that time about 150 feet apart. Both parties maintained their respective rates of speed, and the accident occurred through the plaintiff’s hind wheel being struck by a wheel of the more rapidly moving wagon, before' the northerly track had been completely crossed by the plaintiff.

It must be taken as established that the defendant’s servant was negligent,—in fact, it is so conceded; but the claim is made that the plaintiff, in failing to turn his head for the purpose of seeing in both directions when approaching the car track, was himself at fault. We cannot so view the case. The situation wa, not such as is presented where an approach is made to a crossing-the dangerous nature of which and the difficulty of proper obsers vation before the locality is reached requiring more than ordinary diligence upon the part of the person making the attempt to cross, since here there was no obstruction to the view,— in fact, no “ crossing,” as the word is to be understood. These vehicles but approached one another upon an open space, and the line taken by either one might be said to cross the path of .the other. The evidence shows that the plaintiff looked to the front when proceeding upon his course. Thus, the locality being as noted, he was reasonably in a position to observe any approaching danger from vehicles expected to cross his path, to which effect is his own testimony. Under these circumstances, the question was not one of law, but of fact; and the jury was well authorized, upon the proof adduced, to draw the inference that the accident was due solely to the recklessness of the defendant’s servant. See Chisolm v. State, 141 N. Y. 246; 56 St. Rep. 811. That this individual was driving at a very rapid rate when distant 150 feet from the plaintiff did not, as matter of law, require the latter to take note of the fact, rein in his horse, and forego his attempt to gain his objective point. He could rely upon the exercise of ordinary care upon the part of the defendant’s servant, as of any other driver in the street The duties of the parties were córrelative, and neither was called upon to anticipate the negligence of the other; nor was the defendant’s failure in the exercise of due care to cast an additional duty of diligence upon the plaintiff. Anselment v. Daniell, 4 Misc. Rep. 144; 53 St. Rep. 133. In view of the position of the vehicles, the defendant’s servant was better able to render the situation wholly safe than was the plaintiff, since the latter, after coming upon the track, would have been required to- turn his head directly at right angles in order to guage the speed of the former, who had the scene completely before him. It would have been manifest error to have withheld the case from the jury upon the issue of contributory negligence, and we have but to affirm the judgment.

Judgment and order affirmed, with costs.

All concur.


text:
    Henry Hess & Company, Resp’t, v. Frederick Baar et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Appeal—Direction of verdict.
    Where a motion for dismissal of the complaint is not renewed, nor is the direction of a verdict for the defendant asked for, when both sides have concluded their introduction of evidence and the cause is about to be submitted to the jury, the appellate court is precluded from all inquiry as to whether at that stage of the action there was sufficient evidence to support a verdict for the plaintiff.
    2. Principal and agent—Ratification.
    The ratification by the alleged principal of a contract made by another, who assumes in that regard to act as the farmer’s agent, is an adoption of the contract by such alleged principal, and subjects him to liability thereunder, the same as though the contract was sanctioned by him at its inception.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff, rendered at trial term on a verdict.

      Babe & Keller, for app’lts; Louis W. Stotesbury, for resp’t.
   Bischoff, J.

The record discloses that the merchandise, consisting of cigars, for the recovery of the price of which this action was brought, was purchased by one Nugent, who, in that regard, represented himself to the plaintiff to be, and assumed to act as, Ihe agent of the defendants, but who, in fact, had no such authority. A ratification by the defendants of Nugent’s atet, however, appeared from the testimony of one Deutsch, the plaintiff’s agent, such testimony being to the effect that, subsequent to the sale and the delivery of the merchandise to Nugent, one of the defendants, —Wehnke,— with knowledge of all the circumstances, told Deutsch, with reference to the merchandise, that it was “all right,” and in his presence instructed one Fansten, the defendants representative, to pay the plaintiff the amount of its demand. The motion for dismissal of the, complaint, made when the plaintiff rested its case, was, therefore, properly denied. The motion for dismissal of the complaint was not renewed, nor was the direction of a verdict for the defendants asked for, when both sides had concluded their introduction of evidence, and the cause was about to be submitted to the jury. Hence we are precluded from all inquiry as to whether at that stage of the action there was sufficient evidence to support a verdict for the plaintiff. Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544; Paige v. Chedsey, 4 Misc. Rep. 183; 53 St. Rep. 190; Myers v. Cohn, 4 Misc. Rep. 182; 53 St. Rep. 223. In his charge to the jury the trial justice, commenting upon the defendant Wehnke’s promise to pay the plaintiff’s demand, said: “ If you believe this testimony, such a promise would be sufficient consideration for- the payment of this bill, and would make the defendant liable as original debtors ” ; to which the defendants’ counsel excepted as follows: “ I except to the proposition that, if this promise was made, it made the defendants the original debtors.” It is beyond all controversy that the ratification by the alleged principal of a contract made by another, who assumed in that regard to act as the farmer’s agent, is an adoption of the contract by such alleged principal, and subjects him to liability thereunder, the same as if the contract was sanctioned by him at its inception. 1 Am. & Bug. Bnc. Law, tit. “Agency,” subtit. “Ratification,” p. 429, etc., and cases collated in note 2. One error appears in the charge, but, as the attention of the trial justice was not called thereto by an exception sufficiently explicit, in which event it might have been obviated, such error does not now afford ground for reversal. Baylies, Trial Prac. 239, and cases there collated.

Judgment affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Max Eisler, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    Negligence—Railroad crossing.
    In an action for injuries caused -by defendant’s electric car colliding with plaintiff’s wagon, a charge, that there is no evidence which will warrant the jury in finding that the street car which struck plaintiff’s wagon could have been stopped within fifteen feet, is erroneous, where the motorman testified that the cars could be stopped within fifteen feet.
    Appeal from an order, granting a motion for a new trial.

      Morris & Whitehouse, for app’lt; M. Halheimer, for resp’t.
   Per Curiam.

The learned counsel for defendant requested the court to charge the jury as follows: “I ask your honor to charge the jury, in view of this request, that there is no evidence in-this case that would warrant them in finding that this car which collided with this wagon could have been stopped within fifteen feet.” The court added, “at the speed it was going,” and charged the request, and the plaintiff’s counsel duly excepted. The motorman had testified that the plaintiff attempted to drive his horse and wagon across the track when the approaching car was about twenty feet off, and that the car was moving at the usual rate of speed. On cross-examination, he was asked: “Q. Within what distance can you stop your car? A. Well, there are different cars. You can stop in different distances. Q. What is the greatest distance, and what is the shortest distance? A. You can stop a car in fifteen feet or less.” In view of the testimony of the motorman, we are of the opinion that' the charge before set forth was error, and that the learned trial judge properly granted a new trial. It is therefore not necessary to examine the other questions, in the case.

Order granting new trial affirmed, with costs.


text:
    Asa L. Rogers, App’lt, v. John J. Hardy, Resp’t.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    Trial—Direction of verdict.
    A request by each party for a direction of a verdist in his favor is a, stipulation that the court shall pass on the facts.
    Appeal from a judgment in favor of defendant.

      Stedman & Larkin, for app’lt; Grout, De Fere & Mayer, for resp’t.
   Per Curiam.

This is an action to recover damages for the alleged conversion of personal property consisting of machines and machinery in a mill. The court directed a verdict for the defendant, and this is an appeal from the judgment entered thereupon, and from the order denying motion for new trial.

At the closé of the case the attorney of each party requested the court to direct a verdict in his favor. This was a stipulation that the court should take from the jury the facts, and pass upon them itself. Koehler v. Adler, 78 N. Y. 287. This responsibility so-devolved upon the court, it assumed and directed a verdict for the defendant, thereby* deciding that plaintiff was not the owner of this property, and that his testimony was unworthy of credit. Defendant’s original possession of this .property was not wrongful, therefore the onus was cast upon plaintiff of establishing his title. Plaintiff told so many conflicting stories concerning his alleged ownership of the property, and failed to produce documentary evidence, which he claimed to exist, that would corroborate him, and there being testimony that so strongly points to the inference that the “ Charles E. Rogers & Co.” corporation bought and paid for this property through the plaintiff as its representative, and was in possession and use of the same from the time it was so purchased till the defendant acquired the title and possession of the mill in which this machinery was, that it seems to us the court was called upon to so discredit plaintiff’s testimony as to full justify the conclusion that plaintiff had failed to establish his title to this property. .

The exceptions taken to the admission of testimony tending to show that this corporation was the owner thereof are not well taken, for this tended'to show that plaintiff was not the owner. The other exceptions require no special attention.

Judgment and order must be affirmed, with costs.


author: Osborne, J.

text:
    The People ex rel. James Allen, App’lt, v. Leonard S. Welles, as Commissioners, etc., Rep’ts.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    1. Municipal corporations—Police bulbs.
    Rules adopted by a police commissioner remain binding on the police force, though the commissioner who made them has been succeeded in office by another person.
    2. Same—Charge s—Abatement .
    The fact that a charge of intoxication, made by a police captain against the relator before a police magistrate, was pending and undetermined, cannot constitute a bar to the commissioner’s proceeding with the trial of charges against the relator, nor can the final decision of the police magistrate, acquitting the relator, have any effect in such proceeding.

      Certiorari to review the action of the commissioner of police and excise of the city of Brooklyn, in dismissing relator from the police force.

      Fenton Rockwell, for relator; Jacob Brenner, for resp’t.
   Osborne, J.

This is a proceeding by certiorari to review the action of the respondent, as commissioner of police and excise, in dismissing the relator from the police force. By the charter of the city of Brooklyn (Laws 1888, tit. 11, ch. 583, § 9) the commissioner of police and excise was authorized “ to make such rules, regulations and orders for the government of the police force as he may deem proper,” and he was also authorized (section 15), on conviction for violation of rules, etc., to punish by dismissal from the force. It appears from the return to the writ that on or about October 23, 1893, Hon. Henry I. Hayden, the then commissioner, caused to be adopted, issued, and published certain rules and regulations for the government of the police force, and these rules have never been repealed. One of such rules (rule 12, § 5) required each patrolman to remain on his post “until the time assigned for the expiration of his tour of duty," except in certain specified cases, not relating to the matters in issue here. Another of said rules (rule 25, § 5) forbade any member of the force being intoxicated, and further provided, in addition to being suspended and reported, that, in case he “ became violent, disorderly, or unable to take care of himself, he should be detained as a prisoner, and taken before a magistrate at the next sitting of the court.” On December 18, 1893, the relator was appointed a patrolman on the police force, and at about that time a copy of the said rules and regulations was furnished him. On or about February 1, 1894, the respondent was duly appointed commissioner of police and excise, in place of Mr. Hayden, whose term of office had expired. On January 24, 1895, charges were preferred by the captain of his precinct against the relator for a violation of both of the above-mentioned rules, and he was also taken before Police Justice Haggerty on a charge of intoxication. The relator appeared in person and by counsel before the commissioner in answer' to said charges. A trial was had, witnesses examined on both sides, and, after deliberation, the commissioner adjudged the relator to be guilty of both of the charges preferred against him, and dismissed him from the police force. The relator now seeks, by writ of certiorari, to review this determination of the commissioner, and to have it reversed.

The learned counsel for the relator urges that, as the present police commissioner had never adopted as his own and promulgated the rules and regulations issued by his predecessor, there were no rules of the department in existence under which the relator could be disciplined by the present commissioner. This contention cannot be sustained. The police department is a continuous body, and, while the executive head thereof may be changed from time to time, such change never contemplated the readoption of all previous rules and regulations in order to make them binding on the force. Those rules and regulations stood, not as the act or declaration of an individual, but of the official head of the department, and they continued to be binding on the police force till altered or repealed by the proper authority. The fact that a charge of intoxication made by the police captain against the relator before a police magistrate was pending and undetermined cannot constitute a bar to the commissioner’s proceeding with the trial of charges against the relator, nor can the final decision of the police magistrate acquitting the relator have any effect in this proceeding. The commissioner had a right to try the relator for a violation of the rules of the police department, and to punish him, in his discretion, if the charge was sustained; while the police magistrate’s duty and power related solely to the trial of the relator for offenses against the people of the state of Hew York. People v. French, 32 Hun, 112. Both officials acted independently of each other within their respective spheres of duty, and no action of one was binding upon the other.

We have carefully considered the evidence on the trial of the relator, and are of the opinion that the determination of the respondent was well sustained by the evidence. There is nothing to show that any rule of law was violated to the prejudice of the relator. There was competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and there was no such preponderance of proof against the existence of any of those facts that the verdict of a jury affirming the existence thereof, rendered in an action in the supreme court triable by a jury, would be set aside by the court as against the weight of evidence. Code Civ. Proc. § 2140.

The proceedings should be confirmed, with $50 costs and disbursements to the respondent.

All concur.


text:
    John J. Simpson, Jr., Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    Heguigence—Question fob juby.
    The question of negligence and contributory negligence was held, under the facts of this case, to have been properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff.

      Morris & WMtehouse, for app’lt; Dailey, Bell & Crane, for resp’t.
   Osborne, J.

Plaintiff obtained a verdict against the defendant for damages for injuries sustained by him through the negligence of the defendant. We are now asked to reverse the judgment in favor of the plaintiff, and the one point presented to us on this appeal, as ground for a reversal, is that the learned trial judge erred in refusing to grant the motion of the defendant’s counsel, at the close of all the evidence, to dismiss the complaint, on the grounds that plaintiff had failed to establish negligence on the part of the defendant, that plaintiff was guilty of contributory negligence, and that the preponderance of evidence was in favor of defendant, and also in refusing to direct a verdict for defendant.

The case made by plaintiff was to the effect that on the afternoon of October 9, 1893, he, in company with others, was riding in a wagon along Myrtle avenue, between Ridgewood and Richmond Hill, on their way back to Brooklyn, on which avenue defendant operated cars propelled by dummy engines. The party were driving on the right-hand track, and, just before reaching the foot of a hill some feet long, they were noticed by signal of the approach of a 'train in their rear. The wagon was driven over to the left-hand track to allow the train in the rear to pass, and at that time there was no train in sight approaching on the left-hand track; and it was further proven that the road on the right of the right-hand track was rough and unfit for travel. After the train on the right-hand track had passed, the driver of the wagon proceeded to turn back into the right-hand track; and, as he was turning back, a dummy with cars attached came in sight on the left-hand track, proceeding down the hill at a high rate of speed, and the tail end of the wagon was struck by one of the water tanks of the dummy, which projected about fourteen inches over the rail, throwing the plaintiff from the wagon, and inflicting the injuries complained of. Defendant’s story was 'that, as the dummy engine, going at the rate of ten miles an hour, approached the Wagon, which was being driven on the roadway to the left of the track, the driver of the wagon suddenly turned to the right, and" attempted to cross the track about ten or twelve feet in front of the engine, and that, although the engineer stopped his engine as quick as he could, he was unable, in spite of his efforts, to avoid a collision, and he struck the rear part of the wagon.

There was no such preponderance of evidence in favor of the defendant as would have justified the trial judge in taking the casa from the jury. It was plainly his duty to leave to the jury to determine which side was telling the truth; and, in doing so, the jury was charged that, if the defendant’s statement of the way the collision occurred was the true one, the plaintiff could not recover. The jury, by their verdict, have found that plaintiff’s statement as reasonable ground for interfering with the conclusion arrived at.

Judgment and order denying motion for a new trial must be affirmed, with costs.


author: Pryor, J.

text:
    Edward Barbig, Pl’ff, v. Louisa P. Kick et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed September, 1895.)

    Mechanic’s lien—Foreclosure.
    Where a judgment has been recovered at law for the debt secured by a mechanic’s lien, an action to foreclose the lien cannot be maintained until the return of an execution on the judgment unsatisfied.
    Demurrer to the complaint.

      John Mulholland, for pl’ff; George Haas, for demurring def't.
   Pryor, J.

Action by subcontractor against owner and contractor for foreclosure of a mechanic’s lien. Demurrer by contractor defendant. The complaint shows a judgment against the contractor defendant for the debt secured by the lien, but omits to allege issue or return of execution. This defect the demurrer affirms to be fatal to the defense. Upon principle, the lien is a security for the debt, and a judgment for the debt is no bar to the enforcement of the security. The remedies by action for the debt and foreclosure of the lien are cumulative and concurrent, and the creditor may pursue both-until he obtains satisfaction. Pollock v. Ehle, 2 E. D. Smith, 541; Hall v. Pettigrove, 10 Hun, 609. The plaintiff concedes the law to be so if not changed by statute," but contends that by section 8, chap. 842, Laws 1885, the return of the execution unsatisfied is an indispensable condition to the maintenance of the action to foreclose the lien. The section provides that “the manner and form of instituting and prosecuting any such action * * * shall be the same as in actions for the foreclosure of mortgages upon real property.” But section 1630 of the Code, an action to foreclose such mortgage “shall not be commenced or maintained” until the return of execution unsatisfied. The precise point for adjudication is, does the act of 1885, in conjunction with section 163Ó of the Code preclude enforcement of the lien until issue and return of execution ? In the foreclosure of a mortgage, the complaint must state whether any other action has been brought to recover any part of the mortgage debt (Code, § 1629); and, if in such action judgment has gone for the plaintiff, he cannot commence or maintain in an action to foreclose the lien until the issue and return of execution (section 1630). If, then, the procedure in an action to foreclosure a lien is to be identical with the procedure in an action to foreclose a mortgage, the issuance and return of an execution is as indispensable in the former as in-the latter action; and, if the fact of such issuance and return be an essential constituent in the cause of action, an elementary rule of pleading requires its allegation in the complaint. Were the effect of the provisions of the Code to deprive the mortgagee of his right to foreclosure they would not be a mere regulation of procedure; and so, since the act of 1885 only assimilates the two actions in procedure, section 1630 might not apply in an action upon the lien. As, however, the right to sue is not abolished, but only suspended until the return of execution, the provision is plainly a rule of procedure. The lienor may maintain an action at law for the debt, but, if he chooses to pursue the legal remedy, he must exhaust it before recourse to equitable relief, The equity of the rule is illustrated in the present case. The plaintiff has recovered a judgment for the debt against his contractor,'but, without an attempt to coerce payment from the real debtor, he seeks satisfaction out of the property of one standing substantially in the situation of a surety. Upon another ground, too, it is apparent that, as against the contractor, the complaint propounds no cause of action. There is no lien upon his property to be foreclosed, nor can there be a recovery against him for the debt, because it is already merged in judgment. Against him, therefore, the complaint exhibits no right to relief.

Demurrer sustained, with leave to amend on payment of taxable costs.


text:
    Robert F. Bixby, Individual and as Trustee, etc., Resp't. v. Casino Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Landlord and tenant—Summary proceedings.
    A summary proceeding will not lie for a nonpayment of taxes covenanted to be paid by the lessee, where the lease expressly provides that such proceeding may be brought for a nonpayment of rent, but is silent as to the nonpayment of taxes.
    S. Same—Ejectment.
    A reservation in such lease of the right of entry for default in the performance of covenants authorizes the recovery of possession by ejectment, and not by summary proceedings.
    •8. Same.
    A provision in a lease that only one of several existing remedies shall be resorted to for the recovery of possession for breach of conditions of the lease is binding.
    Appeal irorn a final order in favor of plaintiff on a trial without a jury.

      Moses Weinman, for app’lt; Mihu Hoot, for resp’t.
   Gtegerich, J.

The petitioner is the owner of the property at the corner of Broadway and Thirty-Ninth street, in the city of New York, known as the “Casino.” On the 1st day of December, 1891, pursuant to a renewal clause of a former lease executed in 1882, the petitioner leased to a company, through whom the present tenant claims title through several mesne conveyances, the above-mentioned property. Summary proceedings to dispossess the tenant for failure to pay taxes as provided for in the lease were instituted, and resulted in a final order awarding to the petitioner the delivery of the possession of the property, and the tenant has brought this appeal.

The lease of 1891 contained the following clause :

“ That it shall be lawful for the said party of the first part and the said party of the second, their heirs, successors or assigns, or either of them, according to the nature of their respective estates, rights, and interests in the said demised premises, where and as often as default shall be made in the payment of the rent by these presents reserved, or any part thereof, to take such summary or other proceedings for the recovery of the said rent and the possession of the said premises as may be permitted by law.”

The lease of 1882 contained a like provision, mutatis mutandis. This provision we conclude with some reluctance, must be regarded as a bar to the remedy herein sought. It is a plain agreement that summary proceedings may be had for nonpayment of rent, and, under the principle “expressio unius est exclusio aiterius,” default in the payment of taxes is not comprehended. Upon first impression, it might seem that rent should be regarded as the entire consideration which a tenant pays to a landlord for the use of the demised premises, whether directly as rent proper, or indirectly and for his benefit in form of taxes and assessments. But the word must be interpreted in the light of its context, and when used with respect to summary proceedings, it means something quite different from taxes. People v. Swayze, 15 Abb. Prac. 432 ; Witty v. Action, 58 Hun, 552 ; 35 St. Rep. 949. See, also, the various Code provision^ under the title (sections 2231-2265). The clause cannot be construed as though it stood only in the lease of 1882, or even as though it found its way into°the lease of 1891 by virtue of an unconditional agreement by the landlords in the first lease to execute a renewal upon similar terfns at the option of the tenant. The landlords could, under the provisions of the lease of 1882, either grant a new lease upon the identical terms, so far as the point in question is concerned, or pay the value of the buildings erected upon the demised premises. The agreement must be treated, therefore, as though entered into, and its terms selected for the first time, in 1891. Gould it be construed as though made in 1882 the clause quoted might be regarded as a mere recital of the law as it then stood, and as without any significance respécting the point now under consideration. Butin 1891 the laws relating to summary proceedings had been amended (chapter 13, Laws 1885, amending Code Civ. Proc. §2231, subd. 3), by making default in payment of taxes an additional ground for this summary relief to the landlord. Here, therefore, is a case where the parties, at a time when a remedy is allowed upon several grounds, explicitly indicate one of these grounds as being permitted between them, It is nota case where parties to a lease “are presumed to have contracted with reference to the power of the legislature to annul, modify, or change the remedies therein provided for the collection of the rent reserved,” Martin v. Rector, 118 N. Y. 476; 30 St. Rep. 27; but where they agree that only one of several existing remedies, as it were, shall be resorted to between them. We are aware of no reason why such a contract should not be enforced.

The reservation in the lease pf the right of re-entry by the lessor upon default on the part of the lessée in performance of any of the covenants assumed by the latter cannot be regarded as a provision for summary proceedings, but for an action in ejectment, and, by a similar process of reasoning, supports the conclusion above reached.

For these reasons, the final order should be reversed, and restitution ordered to the appellant, with costs. '


text:
    Joseph Hughes, Resp’t, v. Henry Hughes, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    Ejectment—Defenses.
    In action of ejectment, the defendant may show that the deed, under which plaintiff claims, was void because made while defendant was in possession of the land under an adverse claim.
    Motion for reargument.

      John J. Gleason, for app’lt; JMw. W S. Johnston, for resp’t.
   Bischoff, J.

We find no reason for ordering a reargument of this appeal. The vice of the respondent’s position is that it assumes that the relation of landlord and tenant was conclusively shown to have existed between Bridget Barrett, through whom he claims title, and the appellant, or the latter’s predecessor in possession, and that, therefore, the appellant was estopped from questioning the respondent’s right to possession. It was, however, because the appellant was precluded from showing^to the contrary of the inferences which arose from the evidence adduced for the respondent that the judgment was pronounced erroneous. The respondent was entitled to recovery only upon proof of his right to possession, not because the appellant’s right to possession was not apparent. If the evidence excluded disproved a tenancy under Bridget Barrett, is was competent to the appellant still. further, and for the reasons assigned in the opinion upon the decision of the appeal, to disprove the respondent’s claim of seisin by showing that the instruments under which the claim was made offended against the statute which declares all grants of lands held adversely by another void.

The respondent urges petitio principii that it is to be presumed that the person in possession holds under the owner of the legal title, and that such presumption extends to the successor of the tenant’s possession. Granted, but the very evidence excluded at the trial was aimed to rebut the presumption.

Motion denied, with $10 costs.


text:
    Frank Manfredi, Resp’t, v. Morris Wiederman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    Justice’s Court—Jurisdiction—Title to land.
    An answer in trespass, alleging that the defendants were the “owners in fee” of the premises, sufficiently sets forth facts showing that title to real property will come in question to require the justice to discontinue the action.
    Appeal from a judgment in favor of plaintiff.

      Eugene Sondheim, for app’lt; James P. Rigging, for resp’t.
   Bischoff, J.

To an action for damages, arising out of a trespass by the defendants upon certain premises of which plaintiff was the occupant, an answer of title was interposed and an undertaking given, as required by sections 2951 and 2952 of the Code of Civil Procedure. No objection to the sureties was made, and the justice retained the undertaking, but refused to discontinue the action, which refusal forms the appellants’ chief grievance upon this appeal.

If the answer was in proper form, the justice’s retention of the undertaking sufficed to oust him of jurisdiction, Harding v. Ellston, 13 N. Y. Supp. 549; Code Civ. Proc. § 2954; Consolidation Act, § 1286, subd. 1; and therefore the judgment must be reversed if compliance with section 2951 of the Code, as to the form of the pleading, is disclosed. The defendant is required by that section to set forth in his answer “facts showing that the title to real property will come in question,” and “title” in this connection means “right of possession.” Dunster v. Kelly, 110 N. Y. 561; 18 St. Rep. 548; Heintz v. Dellinger, 28 How. Prac. 39; Ehle v. Quackenboss, 6 Hill, 537. The “right of possession” was -certainly a material question in this action; and, there being an allegation that defendants, were the “owners in fee” of the premises at the time of the alleged trespass, the answer sufficiently raised an issue of “title,” without further particularity as to surrounding circumstances. Abb. Trial Brief, tit, “ Pleadings,” § § 356, 956, and cases cited. It results that the judgment must be reversed, with costs, and the cause remanded to the court below, for removal into the supreme court.


text:
    Max Silverman, Resp’t, v. Sanford Simons et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed October 28, 1895.)

    Evidence—Documentary—pass book.
    The entries in a bank pass book were held, in this case, not to be admissible in evidence in corroboration of the depositor’s testimony as to what he did with the money deposited.
    Appeal from a judgment in favor of plaintiff.

      Blumenstiel & Hirch, for app’lts; Ghas. J. Patterson, for resp’t.
   Osborne, J.

This action was brought against the late sheriff of Kings county to recover damages for the alleged conversion of certain personal property of which the plaintiff claimed to be the owner, and the present defendants, as indemnitors of the sheriff, were substituted in his stead. Plaintiff obtained a verdict; and from the j udgment entered thereon, and the order denying a motion for a new trial, this appeal is taken.

It appears from the evidence that plaintiff claimed that the personal property in question had been transferred to him by the insolvent firm of B. Sturman & Son, in payment of an alleged balance of indebtedness for moneys loaned at various times by the plaintiff to said firm. Defendants sought to show that the alleged loans were fictitious, and that the transfer of said property to plaintiff was in fraud of the creditors of B. Sturman & Son. Plaintiff testified that the first loan to Sturman & Son was made by him early in October, 1892 ; that it consisted of a check for $500 drawn by him on the East Side Bank, and also of the sum of $500 in bills likewise drawn from the same bank; and that this sum of $1,000 was a wedding present from his wife’s uncle on the occasion of his marriage, in September, 1892, and which he had deposited in said bank. With a view of corroborating plaintiff’s evidence in this regard, the learned counsel for the plaintiff offered in evidence the “bank book of the East Side Bank, showing the deposit of the $1,000 and the draft of this $500 check.” Plaintiff testified with reference to the book as follows :

“Examined by Mr. Patterson: Q. Did you have an account with the East Side Bank ? A. Yes, sir. Q. Did you have a pass book in which the bank entered the deposits as you made them ? A. Yes, sir. Q. Is this the pass book ? A. That is the book. Q. Did you receive from the bank checks back ? A. Yes, sir. Q. Are they entered on the other side? A. Yes. Q. That was the original book of account between you and the bank ? A. Yes, sir. Mr. Patterson : I offer it in evidence. By Mr. Hirch: Q. Do you know in whose handwriting these entries are ? A. Ho, sir; I don’t know. Q. Did you ever see anybody write in this book ? A. Ho, sir; that is on the other side because I didn’t use it no more. Q. There are entries in the book on the other side ? A. Ho, sir; that is the end of it. Q. The first four or five pages, do you know whose handwriting they are? Al Ho, sir. Q. Did you ever see any entry made in that book ? A. Ho, sir; nobody made it except the—Q. (by Mr. Patterson). Except what ? A. Except the one in the bank. Q. But you did not see it made ? A. I gave that to them to correct the book. Q. (by the Court). And they handed it back to you ? A. They handed it back to me. Q. With the entry in it ? A. The same book,—the bookkeeper. By Mr. Patterson: You handed this in with your money? A. Yes. Q. And they handed back the book to you with your money entered in ? A. Yes. Mr. Patterson : I will offer the first five pages. (Objected to, as incompetent and not the best evidence. Objection overruled. Defendants except.) ”

These five pages of the bank book admitted in evidence consisted of entries of various sums at various dates, purporting to be deposits commencing September 27,1892, with the sum of $1,019.46, and having an initial opposite each sum (presumably of the receiving teller); while alongside of these entries, and on the same pages, was a list of various amounts placed under each other after the usual manner of balancing a bank book (including two items of $500 each), and which amounts are supposed to represent the various checks drawn by the depositor.

We are of opinion that this bank book was erroneously admitted in evidence, and that the exception to its admission was well taken. We are at a loss to see how the bank book was admissible as constituting evidence of the facts sought to be proven. The fact that the bank book indicated that on September 27, 1892, plaintiff made a deposit of $1,019.46, does not prove that plaintiff acquired possession of $1,000 as a wedding gift, and that he deposited that particular amount in the Bast Side Bank; neither do the two sums of $500, set down in a long column of figures show that plaintiff drew a check for $500, and loaned it to Sturman & Son, as he testified. The bank book was offered and received with a view of corroborating plaintiff’s evidence on these particular points, and yet, for aught that appears to the contrary, plaintiff might have received this sum of $1,019.46 from some other source, and used the check for $500 for some purpose entirely foreign to that which he testified to. When the book was offered, and plaintiff was examined with reference to it, no attempt was made to show by his evidence that the item of the deposit of $1,019.46 and the item of the $500 check were the same items to which he had previously testified. The book having been admitted in evidence, the jury was left to assume or infer that the items in question corroborated plaintiff’s evidence with reference to those transactions; and that the bank book was not without influence on the jury is shown by the fact, as appears from the appeal book, that it was "sent to the jury room at the request of the jury. Entertaining these views, we have not considered it necessary to pass upon the point raised by the learned counsel for the appellants that the entries in the book were not verified by some clerk or official of the bank. We are of opinion that, by reason of the error in admitting the pass' book in evidence, the judgment and order denying motion for new trial should be reversed, with costs to abide the event. •


author: Griffith, J.

text:
    The People ex rel. Thomas Muckle, Pl’ff, v. The Board of Excise of Town of Brunswick, Def't.

      (Rensselaer County Court,

      Filed July, 1895.)

    1. Excise—Local option.
    A proposition for local prohibition may be submitted at a town meeting by any elector to a town vote, and there "is no necessity for submitting such question to the voters of a town by the selection of “no-license commissioners.”
    3. Same—Commissioners]
    Excise commissioners cannot refuse to grant licenses on the ground that they were elected for the purpose of refusing all applications for licenses.

      Certiorari to review the determination of the board of excise denying relator’s application for a license to sell liquor.

      Henry J. McCormick and William J. Roche, for relator; Calvin M Reach, for def’ts.
   Griffith, J.

The question presented for determination is, did the board of excise for the town of Brunswick arbitrarily deny, or deny without good and valid reasons therefore, the application of Thomas Muckle for a hotel license, permitting the sale of strong and spirituous liquors, wine, ale, or beer, to be drunk on or off the licensed premises? The writ of certiorari requires the board of excise to return a transcript of the proceedings had before them, and the statement of the other matters specified in, and required by, the writ. The paper filed May 28, 1895, and indorsed, “ An Answer to Writ of Certiorari,” was intended, no doubt, by William H. Link and Sanford Clum, as a return to the writ, but in fact only controverts the allegations of the petition, and alleges facts in explanation of the commissioners’ action, and other matters not called for by the writ. The amended return, made pursuant to án order of this court, and filed June 12th, must be regarded as the return which is to be considered on this hearing. People v. Ryken, 6 Hun, 626 ; Stone v. Mayor, 25 Wend. 157; People v. Vermilyea, 7 Cow. 137; People v. Mayor, etc., of New York, 2 Hill, 11. Annexed to the return are the papers filed with the board by the relator upon his application for a license, and the same are in proper form, and fill all the requirements of the statute. Laws 1892, chap. 401, § 20. The return discloses the following proceedings had by the board upon the receipt of the relator’s application for a license:

An application from Thomas Muckle for a license to keep an inn, tavern, or hotel on the Troy and Pittstown turnpike, about three-quarters of a mile from the Troy city line, and known as the 1 Brookside Hotel.’ The board of excise commissioners refuse to grant a license to Thomas Muckle, for the following reasons : We, the majority of the board of excise óf the town of

Brunswick, in conference this 6th day of May, have come to the conclusion, to wit: That we were nominated and elected as no-

license commissioners, and that a majority of the voters of the town of Brunswick, at the last two annual town meetings therein, have practically expressed, by their votes for commissioners of excise, their opposition to the granting of any license; that there is no public necessity for granting such license; that granting such license would be injurious to the welfare of the public; that, from all the facts, and circumstances of the case, this board, in the exercise of its discretion, will refuse to grant this license.

William Link,

Sanford Glum.

“Sherman Smith not voting.”

The return further shows that the • same action was had upon all the applications for license presented to the board, and that no licenses were granted; that thereafter the said William H. Link and Sanford Clum did file in the office of the bqard a statement of their reasons for refusing to grant the licenses applied for, which reasons were the same as above given.

There is no ambiguity in the return. It is plain that the commissioners intended to, and did, reject all applications for licenses in the town of Brunswick, and the indefiniteness of the return suggested by Judge Herrick in People ex rel. Jones v. Bennett, 4 Misc. Rep. 10; 53 St. Rep. 724, does not exist in this case. The board of excise of the town of Brunswick have, by their action, attempted to establish local prohibition in that town. In my opinion, the board has no such power, in law. By chapter 30Ó, Laws 1845, electors of the several towns and cities of this state were authorized to determine by ballot whether the members of the board of excise in their respective towns and cities shall or shall not grant licenses for the selling of intoxicating liquors, and, in case the majority of the voters should vote in favor of “ no license,” then the board of excise to be prohibited from granting any licenses. This act was repealed by chapter 274, Laws 1847. My attention has not been directed to any statute on the subject of local prohibition from the above repeal until the enactment of section 6, chap. 549, Laws 1873, as amended by chapter 401, Laws 1892, section 41 of which provides :

“ Nothing herein, except section 31, shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall reverse by vote such local prohibition.”

A fair construction of section 41 would be that whenever any town, by a majority of voters, have voted for local prohibition, the provisions of the excise law shall not apply to that town except that, if intoxicating liquors are sold, the person selling shall be guilty of a misdemeanor. Counsel for the defendants contends that the only way to submit the question of local prohibition to the voters of a town is by the selection of “ no-license commissioners.” In this he is mistaken. Section 41 of chapter 82 of the Laws of 1893, which is an amendment to the “ town law,” provides that any elector of a town may, by written application filed with the town clerk at least ten' days before the town meeting, suggest any proposition to be submitted to and voted upon by the electors of a town at any town meeting which is not required to be voted upon by ballot. The town clerk shall give notice of the proposition to be so voted for by publishing the same, at least one week before the town meeting, in a newspaper published in the town, if any is published therein; at the place where the poll of the town meeting is to be held, in each election district, and" shall be publicly.read by the-inspectors to the voters present before any such vote is taken. The vote shall be taken by a division of the electors present and voting thereon, and the inspectors shall count the number so voting in favor of such proposition, and the number so voting against, the same, and shall enter into the statement of the result of the town meeting held in such district a statement of the proposition so voted upon, and the number of votes so cast in favor of and against the sagie, and certify with the statement'that they are required to certify and return to the justice of the peace and the town clerk. Sections 32-34, art. 2, ch. 569, Laws 1890, define-the business of the towns which require a vote of the people by ballot. What, then, is to prevent an elector of a town from filing with the town clerk a written application for the submission of a proposition to be voted on by the electors of a town at a town meeting, upon the question of local prohibition ? The procedure in such cases is made very simple, and the statutes amply provide for the submission of such a proposition to be voted directly on by the people of a town. Such must have been the views of the lawmaking powers in enacting the language of section 41 of the excise law (Laws of 1892, ch. 401):

“ Nothing herein, except section 31, shall in any manner apply to any town where a majority of the voters have voted for or hereafter vote for local prohibition, until such town shall reverse by vote such local prohibition.”

This clearly intends that the vote for local prohibition shall be the direct expression of a majority of voters; for, if it was intended otherwise, the legislature would have re-enacted chapter 300 of the Laws of 1845, which permitted the electors of the several towns to determine by ballot whether there should or should not be licenses granted by boards of excise. If a proposition for local prohibition is adopted by a majority of the voters at a town meeting, the effect would be that all the provisions of the excise law, except section 31, would not apply to that town, and thereafter there would be no authority in law for the election of excise commissioners in such town. If the majority of the voters of the town of Brunswick favor local prohibition, they must so declare by submitting that proposition to the electors of the town, and not pursue the hollow mockery of electing excise commissioners who do not intend to perform an official function, beyond drawing their pay. It is hardly necessary to multiply words to establish the truth of this proposition. Why should there be excise commissioners in a town where a majority of voters have determined that there shall be no licenses ? Section 41 of the excise law must be observed and followed as strictly as any other provision of law. And where a majority of voters have not voted for local prohibition, submitted to them as such, then excise commissioners must be elected in that town, and when they shall have been elected and qualified the law requires them to perform duty. There can be no doubt upon this last proposition, for, if the provisions of the excise law are carefully examined, it will be seen that section 20 provides that a party applying' for a license must present a written or printed application, signed and sworn, requiring the applicant to furnish the excise board with certain information: also, a bond in the penal sum of $250. Section 21 provides:

“ If the board approves the bond presented with such application, both as to its form and as to the sufficiency of the sureties therein, and if the board is satisfied that such application is true and that each such applicant may lawfully be licensed to carry on the business sought to be licensed, the board may grant to the applicant therefor one or more of the kinds of licenses specified in that act.”

Section 7 requires the excise commissioners to take and file the constitutional oath of office, the language of. which requires a faithful performance, rather than a nonperformance, of duty; and the same section requires that every commissioner of excise shall make and file a bond, in a penalty to be fixed by the supervisor of the town, at a sum not less than double the sum collected in such town for excise licenses in the next preceding year, and at least for $1,000, conditioned that the commissioner shall faithfully perform all duties of his office, etc. Thus it seems clear and indisputable that excise commissioners have a duty to perform, and cannot avoid a faithful performance of that duty by reason of individual opinion, or conscientious or religious scruples. The law never contemplated that commissioners of excise should perform legislative functions, or that after their election, and acceptance of office, they should say, “We have been elected to do nothing.” Commissioners of excise were not created by the legislature either to grant all licenses applied for, or to reject all licenses applied for, but, among other things, to hear and consider, and lawfully adjudicate upon, such applications as might be made for licenses; acting in each case upon its merits, as dissociated from the merits of other cases. The powers of tbe boards over this subject are judicial, and not legislative. It is, no doubt entirely competent for a board of excise to deny an application for a license for a particular house or building, on the ground that a hotel is not necessary at that point, because there is a sufficient number of licensed places in the'vicinity, or in the town, or because, for some other good reason, it is not needed, or ought not to exist While the applicant may not be entitled to a license as a matter of right, he is, as a matter of right, entitled to a lawful disposition of his application upon its merits. People ex rel. Hopkins v. Board of Comr’s of Excise, 4 Misc. Rep. 336; 53 St. Rep. 718; Martin v. Symonds, 4 Misc. 8; 53 St. Rep. 718. The idea seems to be prevalent among some good people, and particularly among commissioners of excise, that boards of excise may be elected to grant no licenses, for the reason that they were avowed no-license men before election, and, in accepting the office, they have no duty to perform. Such is not the case, as the law contemplates. Excise commissioners are elected to grant licenses. That is their duty. McNaughton v. Board, 5 Misc. Rep. 457. I feel strongly fortified in this position by section 24 of the excise law, which provides that the action of boards of excise may be reviewed by writ of certiorari, and if the court shall, upon the hearing determine that such application for a license has been by such board arbitrarily denied, or denied without good and valid reason therefor, said court may make an order commanding such board of excise to grant such application, and issue a license to such applicant, upon the payment of the proper license fee. If the commissioners of excise were to be vested with absolute authority in the matter of granting licenses, then the power to review and revise their actions in the premises would never have been given the courts by the writ of certiorari provided for by section 24. Boards of excise may be commanded, by order of the courts, to issue.licenses, where they have been arbitrarily denied, or denied without good and valid reason, an application for a license; and the question of what ticket the commissioners were elected is not to be considered. The case of People ex rel. Wood v. Board of Com'rs, 75 Hun, 224; 58 St. Rep. 680, has been cited by the counsel for the defendants to sustain their action. I am not unmindful of the maxim, “Stare decisis, et non quieta movere,” and willingly adhere to decided cases with most respectful deference; but in the Wood Case,the learned judge who wrote the opinion did not have his attention directed to the special provisions of the town law, and especially the amendments of chapter 82, Laws-1893. I feel almost certain that, if the provisions of the town law had been considered by the ■court in deciding the Wood Case, the custom of electing “no-license" commissioners ” would not be pointed out as the only mode by which a majority of voters of any town can vote for local prohibition. Every town should be governed in the manner expressed by the will of the majority of the electors, but that will must be expressed in the manner pointed out by the statutes. Suppose a lawyer who was a communicant of the Roman Catholic Church was elected to the office of justice of the supreme court, and after he had qualified, and entered upon the discharge of his duties, an action for a divorce a vinculo matrimonii was brought on for trial before him, and the plaintiff proved by good and sufficient evidence all the material allegations in a proper complaint, and no defense was interposed, and the court was satisfied that there was neither fraud nor collusion, but rendered judgment against the plaintiff upon the grounds and for the reason that he had conscientious and religious scruples against granting divorces, and that his views on that subject were well known to the electors of the district before his election, and therefore, by his election, he was empowered to legislate, rather than adjudicate, upon such questions. If an appeal was taken from such a judgment, how much of an argument would it require to have the court in banc reverse the overscrupulous judge, and order judgment for the plaintiff on the merits ? The same principle is raised in the case at bar. The defendants claim to be opposed to the sale of intoxicants, and their views were known to the electors of the town, and for that reason refused to consider applications for licenses in a manner contemplated by the statute, but base their action on the ground: “ Our views on the license question were well known to the electors, and, if a majority did not indorse such views, we would not have been elected.” However much I respect the learning, ability, and integrity of the judges who rendered the decision in the Wood Case, I feel that I must follow the statute, and its plain provisions, rather than their interpretations thereof. In my position I am sustained, not only by the statutes, but by the opinions of Justices A. B. Parker, and S. A. Kellogg, of thé supreme court, and Judge J. Rider Cady, of Columbia county.

The action of the board of excise of the town of Brunswick in arbitrarily rejecting the application of the relator was based on a misapprehension of the law, amounting to legal error, which is properly re viewable by the court under the writ of certiorari. I do not wish to pass upon the merits of the several applications for licenses in the town of Brunswick, and believe that should be done by the commissioners of excise selected by the electors of the town; and as it appears from the return that said board did not consider the application of the relator upon the merits as it was their duty to do, I send the matter to them for their consideration and determination upon the merits.

The relator shall have his costs of the proceedings, to be allowed and fixed.

Ordered accordingly.