author: Churchill, J".:

text:
    THOMAS CANARY, Respondent, v. EDWIN KNOWLES and THEODORE MORRIS, Appellants.

      Practice — a party by accepting a benefit under one provision of an order waives his right to appeal from the other provisions of the order.

    At a Special Term held on December 19, 1885, the return day of an order to show cause which enjoined the defendants from allowing any person other than the plaintiff to occupy for dramatic purposes the building known as the “ Grand Opera House,” in Brooklyn, during the week commencing December 11,1885, an order was made continuing the injunction, provided “ that in case the defendants shall serve a written stipulation that the damages to be recovered by the plaintiff in this action (in case he shall be decreed to be entitled to recover damages from the defendants therein) will be two thousand dollars, less the expenses of the salaries of the company for the week in question which the plaintiff' will not be bound to pay; that upon the service of such stipulation, signed by the defendants’ attorney, upon the plaintiff’s attorney, the injunction hereby granted shall thereupon stand dissolved.”
    On December twenty-first the defendants executed and served the stipulation, with a notice indorsed thereon “ that the within stipulation is made and served in pursuance of the injunction order of the nineteeth instant, and that the same is made and served under protest and is not to be considered as constituting an assent to such order or any waiver of the defendants’ right to appeal therefrom.”

      Held, that by serving the stipulation and accepting the benefit in such case conferred by the order the defendants waived their right to appeal from the order.

      Chapin v. Foster (33 Álb. L. J., 33) followed.
    That the protest did not prevent their action from operating as a waiver of their right to appeal.

      Vambmann v. Schulting (6 Hun, 29) followed.

      Appeal from an order made at a Special Term, continuing an injunction during tlie pendency of this action.

      Hirsh & Basquin and George W. Wingate, for the appellants.

      W. Bourke Cochran, for the respondent.
   Churchill, J".:

December 16, 1885, plaintiff procured an order of injunction forbidding defendants to allow any person other than the plaintiff to occupy for dramatic purposes the building known as the “ Grand Opera House,” in the city of Brooklyn, during the week commencing December 21,1885, or until the further order of the court; and also ordering the defendants to refrain from interfering in any manner with tbe right of the plaintiff to occupy the same during that week.

The order further required the defendants to show cause at a Special Term, to be held at Chambers, in New York, December 19, 1885, why the injunction should not be continued during the pendency of the action. On the nineteenth cause was shown and an order made by the court continuing and making permanent the injunction, but with the following proviso added: “ Provided, however, that in case the defendants shall serve a written stipulation, 'that the damage to be recovered by the plaintiff in this action (in case he shall be decreed to be entitled to recover damages from the defendants therein) will be two thousand ($2,000) dollars, less the expenses of the salaries of the company for the week in question, which the plaintiff will not be bound to pay; that upon the service of such stipulation, signed by the defendants’ attorneys, upon the plaintiff’s attorney, the injunction hereby granted shall thereupon stand dissolved.”

December twenty-first the defendants executed and served the stipulation called for by the proviso, and. the injunction was thereupon dissolved. Indorsed upon the stipulation, as served, was the following notice:

“ Please take notice that the within stipulation is made and served in pursuance of the injunction order of the nineteenth instant, and that the same is made and served under protest, and is not to be considered as constituting our assent to such order, or any waiver of the defendants’ right to appeal therefrom.
“Dated December 21, 1885.
“HIRSH & RASQTJIN,
“Attorneys for Defendants.
To W. Bourke Cochran, Esq.,
“Attorney for Plaintiff."

December twenty-second the defendants appealed from the order of December nineteenth, and every part of it, to the General Term. The proviso of the order was a favor to the defendants. It put it within their power to obtain what, in showing cause, they were seeking to obtain, i. e., a dissolution of the injunction. They availed themselves of the proviso, and thereby obtained such dissolution. This action on their part was inconsistent with, and a waiver of, their right to appeal from the order. (Smith v. Rathbun, 75 N. Y., 122; Baylies on New Trials and Appeals, 19 et seq., and cases cited; 4 Wait’s Pr., 216.)

It cannot be said that the defendants acted under duress in serving the stipulation. Had the proviso been omitted, their only remedy would have been an appeal from the order. This remedy was equally open to them, the proviso being added. (Chapin v. Foster [101 N. Y., 1], 33 Alb. L. J., 33.)

The case just cited recognizes the rule “ that a party who has availed himself of provisions in his favor, contained in an order, has thereby waived the right to appeal from other provisions therein which are averse to him. The defendants, in acting upon the proviso and serving the stipulation, made the plaintiff’s situation less favorable than it was when the order appealed from was made, since by their action the injunction was dissolved, and they could not after that insist upon their right of appeal. (Grunberg v. Blumenlahl, 66 How., 62.) The protest served did not prevent the defendants’ action operating as a waiver of their right to appeal. (Dambmann v. Schulting, 6 Hun, 29.)

The order appealed from should be affirmed, with ten dolíais costs and usual disbursements.

Brady, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Macomber, J.; Daniels, J.:

license: Public Domain

text:
    LEIGHTON WILLIAMS, as Receiver of the BLAIR IRON AND STEEL COMPANY, Appellant, v. CHRISTOPHER MEYER, Respondent.

      Subscriptions to the stock of a corporation — when future installments are due at the time of the subscription within the purview of the statute of limitations.

    Between January 20 and May 15, 1873, the defendant signed a paper by which he agreed to subscribe for 600 shares of the Blair Iron and Steel Company, to be paid for according to the terms set forth in the same paper, which stated that the whole of the capital stock had been issued and paid for by the transfer of patents; that 9,000 shares of the stock were to be used as a working capital for the company, subject to the order of the board of trustees, except $50,000 of the proceeds which were to be first paid to the signors, who were persons interested in the enterprise; that 6,000 shares were to be sold “ for the purpose of raising the present working capital and paying the said fifty thousand dollars, the minimum price to be fifty dollars per share,” to be paid as follows: “ One-third part thereof as soon as the whole six thousand shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for the same for the purposes of the business, the certificates to be delivered when the whole shall be paid.” The defendant having paid thirty-three and one-third per cent of the amount due for the stock subscribed for by him, this action was commenced on October 14, 1879, to recover the remainder.
    Held, that all the installments became due and payable as soon as the subscription took effect, and that the action was barred by the statute of limitations because not brought within six years from that time.

      Howland v. Edmonds (24 N. Y., 307); Tuclwrmam, v. Brown (33 id., 297); Lake Ontario, etc., Bailroad Company v.Mason (16 id., 451); Goshen Turnpike Company v. Hurtin (9 Johns., 217) followed.
    Appeal fr.om a judgment, entered by direction of the justice upon a trial at Special Term, dismissing the complaint.

      James Watson, for the appellant.

      W. II. Williams, for the respondent.
   Macomber, J.;

Between January 20, 1873, and May 15, 1873, the defendant subscribed for 600 shares of the stock of the Blair Iron and Steel Company, a corporation organized under the general act of 1848, of which the present plaintiff is the receiver. The action was begun by the company itself October 14,1879. At the time of the subscription to the stock, the defendant paid thirty-three and one-third per cent of the amount subscribed, and has paid no other sum. The defense interposed and relied upon, and upon which the complaint was dismissed, is that the action was not brought within six years from the time that it accrued. The sufficiency of this defense is to be determined by the nature and terms of the contract. For, if the right of action accrued to the company at the time of the making of the subscription, it is quite clear that the statute has now run against the claim, and no action therefor can be maintained. The substance of the papers upon which the liability of the defendant is sought to be made is a statement of certain persons in writing to the effect that the capital stock of the company was 25,000 shares of $100 each, making in all $2,500,000 ; that it had already been paid up by the transfer of patents; that 9,000 shares of the stock was to be used as working capital for the company, “subject to the order of the board of trustees of said company, excepting fifty thousand dollars of the proceeds thereof first to be paid to us from said proceeds, the trustees have, with our consent, ordered a sale of six thousand of said shares for the purpose of raising the present working capital and paying the said fifty thousand dollars, the minimum price to be fifty dollars per share, and said trustee, with the approbation of the board of trustees, now offers said six thousand shares at said minimum price of fifty dollars a share, to be paid for as follows: One-third part thereof as soon as the whole six thousand shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for the same for the purposes of the business, the certificates to be delivered when the whole shall be paid.” This proposition was signed by certain persons interested in the enterprise. The paper which the defendant signed is as follows: “We, the undersigned, hereby subscribe to the number of shares, of the above six thousand shares, set opposite to our names respectively, to be paid for according to the terms above set forth, but this subscription not to be binding until the whole six thousand shares shall have been reliably subscribed.”

The amount which the defendant subscribed for was $30,000, one-third of which, as has already been stated, was paid in by him on or about May 15, 1873. It was competent for the defendant to enter into a contract by which he could be called upon to pay, not at the time of making the subscription, but at future periods, continuing for more than six years from the time the original contract was made. The general rule is well settled in this State that in the absence of a contract thus to make the payments in future installments which shall not become, by the terms of the contract, due and payable until some future time, subscriptions become due and payable at once, and no call or demand before action therefor is neeessary. (Howland v. Edmonds, 24 N. Y., 307; Tuckerman v. Brown, 33 id., 297; Lake Ontario, etc., R. R. Co. v. Mason, 16 id., 451.)

The question is whether there is anything in the language of this contract that takes the case out of this general rule. The learned counsel for the plaintiff contends that the expression “ one-third thereof as soon as the whole six thousand shares shall be subscribed for, and the remainder in such installments as the board of trustees may call for the same, for the purpose of the business,” makes it a contract to become due and payable in future installments, and that by implication at least, if not by positive language, the trustees had no right to call for the same except for the purposes of the business and as the exigencies of the business would warrant. This, in our judgment, is not tenable. The sum required was for a “working capital for the company,” and it was subscribed for solely for the purpose of obtaining a present working capital, so that if the company was to operate at all in its enterprise, and, if we are to resort to inferences and deductions, it would seem that the whole of it would be required to be paid at the time of the subscription. The contract does not say, however, that the installments should not be paid except as the purposes of the business might require it, and if it had so stated, the subscribers might have had a defense against the calls that were made by the trustees by showing that the sums' called for were not in fact needed for the uses and purposes of the corporation. But this would import into the contract a condition which does not appear to be found there. The expression “for the purposes of the business” has no significance whatever, as it seems to us, because, in reality and in terms, not only was the contract made for the purposes of the business of the corporation alone, but the trustees themselves would not have any right to call for any sum except for the business of the corporation, The counsel labors under the misapprehension of assuming that the subscription would be tantamount to a condition that the' same was payable only according to the exigencies and requirements of the corporation, and that these were to be determined wholly by the board of trustees.

If we are right in this construction of the agreement, the evidence offered by the plaintiff touching the requirements of the business was incompetent and immaterial, and its rejection was not error. It would not be competent for the plaintiff to vary the terms of the contract by oral evidence showing the needs of the corporation, nor is there in- the contract anything in the nature of a latent ambiguity which would justify a resort to any oral testimony of the character offered by the plaintiff and which was rejected by the trial court.

For these reasons we think the judgment should be affirmed, with costs.

Brady, P. <T., concurred.

Daniels, J.:

To hold that the cause of action accrued before the subsequent payments were required to be made is not consistent with the agreement between the defendant and the company when he subscribed for the stock. And the case of Scovill v. Thayer (105 U. S., 143) is opposed to that conclusion. But the authorities cited in the opinion, as well as Goshen Turnpike Company v. Hurtin (9 Johns., 217), sustain the power of the court to disregard the terms on which the parties made the money payable, and to hold the contract to be one for the absolute payment of so much money at once. They are controlling, although they do violence to the agreement and annul the intention expressed in it. In compliance with their superior authority I agree to the affirmance of the judgment in this case.

Judgment affirmed, with costs.


author: Macombek, J.:

text:
    UNITED STATES TRUST COMPANY OF NEW YORK, Respondent, v. THEODORE M. ROCHE, as Trustee, etc., Appellant, Impleaded with Others.

      Trust estate — the court cannot direct a trustee to mortgage it — 2 R. 8. (6í/t «£?.), 1110, sec. 78 —pen-ties interested in a trust fund should he made pa/rties to an action to foreclose a mortgage thereon.

    In 1858 one Foster, in contemplation of his marriage with Anna S. Stagg, conveyed an undivided share or moiety of certain real estate to one Towne, in trust, from and after the marriage, to receive the rents and profits of said moiety of the said premises during the life of Anna S. Stagg, and to apply the same to her benefit free from the debts, control or management of Foster, The marriage took place, of which there was born a son, who is of full age, and is still living. In 1881, on the application of the trustee, Towne, an order was made at a Special Term directing him to execute and deliver a bond and mortgage on the trust property for an amount sufficient to pay one-half of the arrears of taxes and water rates and the interest thereon which had been permitted to accumulate since the year 1870.
    Upon an appeal from a judgment of foreclosure of such mortgage, recovered in this action brought against the successor of the first trustee:

      Held, that the mortgage was void as falling within the meaning of the provisions of section 78 of 2 Revised Statutes (6th ed.), 1110, declaring that “every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.”

      Cruger v. Jones (18 Barb., 467); Douglas v. Conger (80 N. Y., 15) followed.
    That as the complaint was a simple and ordinary one for the foreclosure of a mortgage, and containing no allegation to the effect that the plaintiff had become subrogated through any equitable principle to the rights of the city of New York to enforce the liens for taxes upon the lands, evidence tending to show that the moneys received on the mortgage were devoted to the payment of prior taxes and assessments should not have been received.
    That chapter 275 of 1882, empowering the Supreme Court to permit the mortgaging of real estate held by trustees had no retroactive effect.
    That as the son was interested in the trust fund, being entitled to a portion of the proceeds to arise from the sale to he made by the trustee upon the death of his mother, he should have been made a party defendant to the action.
    Appeal by tbe defendant from a judgment, entered at a Special Term adjudging tbe foreclosure of a mortgage and directing a sale of tbe mortgaged premises.

      Edward IF. Sheldon, for tbe respondent.

      J. O. Bolton, for tbe appellant.
   Macombek, J.:

In November, in the year 1858, James A. Foster, in contemplation of marriage with Anna S. Stagg, entered into an agreement in writing with Challes H. Towne, party of .the second part, and .Anna S. Stagg, party of the third part, by which, in consideration of the intended marriage, Foster sold and conveyed to Towne and his successor and assigns the undivided share, moiety, estate and interest of the party of the first part in the premises known as Nos. 40, 42 and 44 Bond street and 43 and 47 Great Jones street, in the city of New York, in trust, from and after, the marriage, to receive the rents and profits of the said moiety and share of said premises from time to time during the life of Anna S. Stagg, and to apply the same to her benefit, free from the debts, control or management of Foster. The marriage subsequently took place, of which there is now living a son, James Clinton Foster, who is of full age. On the 9th of September, 1881, on application of trustee Charles H. Towne, the Supreme Court at Special Term, by an order dated that day, directed the trustee, Charles H. Towne, to make, execute, acknowledge and deliver a bond and mortgage on the trust property for an amount sufficient to pay one-half of the arrears of taxes and water rates and the interest thereon, which had been permitted to accumulate since the year 1870.. The mortgage in question was given pursuant to such authority. The defendant Roche is the successor of trustee Charles IT. Towne.

The answer puts in issue the validity of the mortgage and alleges that James Clinton Foster is a necessary party to the foreclosure. The marriage settlement provided that after the decease of the wife, the trust imposed upon the trustees should continue for the purpose of selling such moiety, and paying and dividing the purchase-moneys received therefrom among the lawful issue of the husband an^ wife.

If this trust mortgage has any validity whatever, and if it is sought by the foreclosure thereof to give the purchaser a good title at the mortgage sale, it is difficult to see why Janies Clinton Foster’s rights should not be cut off. Being a remainderman, he was not only interested in the execution of the original trust, but personally interested in any incumbrance that the trustee might put upon the lands, whether in pursuance of the terms of the trust or otherwise. Unless lie be a party to this proceeding, he would at all times thereafter have the right and power to question the validity of the mortgage, and could not be debarred therefrom, except in an action for that purpose. Inasmuch, therefore, as the objection was distinctly taken by answer, we should feel constrained to reverse the judgment ¿nd grant a new trial, with the direction to bring in James Clinton Foster as a defendant, but in view of the determination to which we have arrived on the other branch of the case, the present rights of James Clinton Foster are perhaps of little moment.

The statute (2 R. S. [6th ed.], p. 1110, § 78) declares that where a trust shall be expressed in the instrument creating the estate, which is the case before us, “ every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.” In Cruger v. Jones (18 Barb., 467), which was an action to determine the validity of a marriage settlement, it was held that a mortgage, which is necessarily attended with a power of sale, was an act in contravention of the trust to hold the estate and receive the rents and profits from it, and pay them over from time to time to the designated beneficiary, and was consequently void. In that action, as in this, it was claimed and proved that the moneys realized by the giving of the mortgage were expended upon the estate for the benefit thereof, and for the benefit of the cestaá que i/rust. In that case, as in this also, the mortgage was given under the direction and sanction of the court. The decision, however, was that notwithstanding the sanction of the court, the mortgage could not be enforced against the trust property. So, also, in the case of Douglas v. Cruger (80 N. Y., 15), where the action was to foreclose a mortgage made by the cestui que trust, after the trustee had conveyed to her, under the direction of the court, all her interest in the land, the parties assuming and, believing that the trust itself had been extinguished. The court there say : “ This was one of the express trusts authorized by statute (1 R. S., 728,' § 55), and it is provided (sec. 65) that when the trust shall be expressed in the instrument creating the estate (as it was here), every sale, conveyance or other act of the trustees in contravention of the trust shall be absolutely void.” The court also refers to another section of the statute which was applicable equally in this action as in that (sec. 63), which declares that no person beneficially interested in a trust for the receipt of the rents and profits of land can assign or in any manner dispose of such interest.”

The trustee, therefore, in this case, could not destroy the trust by the conveyance to Mrs. Cruger, and she could not convey or mortgage her right to have the trust performed, which was really the only right she had in the estate conveyed to the trustee. (Sec. 60.) The trustee having no power to convey the land, his conveyance, otherwise absolutely void, could not be rendered valid by an order of the court obtained upon the joint petition of himself and Mrs. Cruger. The Supreme Court has not the power to destroy a valid trust. The purpose of the statute was to make these trust estates and trust interests indestructible and absolutely inalienable during the existence of the trust; and if they could be rendered alienable by order of the court, the whole scheme of the statute would be greatly impaired and its purpose thwarted. The statute does not confer upon the Supreme Court power to authorize such conveyances.” Under these authorities, notwithstanding the fact that all the money raised upon the mortgage was devoted to the payment of back taxes, the mortgage appears to us to be absolutely void and cannot be enforced. The learned judge, however, in the opinion below, bases his decision upon the fact that the moneys were so obtained and used for the purpose of discharging prior liens, which, as he says, could be enforced against the property. Very true; but enforced by whom ? The liens could be enforced in all probability by the sale of the premises under the tax laws embraced in the consolidated act, but upon a sale thereof under such proceedings, there would be the valuable right of redemption which would not obtain under a sale upon this mortgage, if the mortgage is held to be good.

The evidence in this action, showing that the mortgage moneys Avore devoted to the payment of prior taxes and assessments, was duly and properly objected to. Under the complaint, which is a simple and ordinary one for the foreclosure of a mortgage, there is no allegation to the effect that the plaintiff had become subrogated through any imaginary equitable principle, to the rights of the city of Ncav York to enforce the liens for taxes upon the property. The action Avas begun simply to foreclose the mortgage, and the relief which Avas demanded and the judgment which was given were for the usual foreclosure and sale of the premises, and it was all done in accordance with the terms of the mortgage alone and not through any other consideration whatever, and the sole cause of action was a mortgage, too, which under the authorities already quoted and under the plain reading of the statute, was absolutely void. Under these circumstances no other equitable relief, even if it could be had in any other action, could be granted the plaintiff in this action.

"We are not unaware that the legislature of the State, since this mortgage in question was given, has passed an act (chap. 275 of the Laws of 1882) by which section 78 of the Revised Statutes, above mentioned, has been so changed that the Supreme Court now has the power, in a suitable and proper case, to permit the mortgaging of real estate for the purpose of preserving and improving the same. This act, however, can have no retroactive effect and the plaintiff’s rights must be determined by the statutes as they existed at the time of the execution of the instrument.

If these views are correct, a new trial would not subserve any useful purpose to the plaintiff, and it follows, therefore, that the judgment should be reversed and judgment ordered for the defendant, with costs.

Brady, P. L, and Daniels, J., concurred.

Judgment reversed and judgment ordered for defendant, with costs.

       See 1 B. S., 728, § 65 — [Rep.


author: Maoombisk, J.:

text:
    THE HARLEM BRIDGE, MORRISANIA AND FORDHAM RAILROAD COMPANY, Plaintiff, v. THE SOUTHERN BOULEVARD RAILROAD COMPANY, Defendant.

      Bepeal by implication — when a local act is not repealed by a general one —1867, chapter 290, section 24, not repealed by chapter 252 of 1884.
    Section 24 of chapter 290 of 1867, entitled “ An act to authorize the towns of Morrisania and West Farms to widen, make, extend and improve a highway in ■said towns called the Southern Boulevard,” which declared that such highway should he kept and maintained for public use-as an avenue and boulevard, and, except for the, purpose of crossing the same, no railway or tramway shall be laid or constructed thereon, or on any part thereof, by any person or corporation whatever without a special act of the legislature, was not repealed by the passage of chapter 252 of 1881, entitled “An act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof in cities, towns and villages.”
    This provision of the act of 1867 is not “inconsistent” with the act of 1884, within the meaning of that expression as used in the eighteenth section of the latter act, which provides that “all acts and parts of acts, whether general or special, inconsistent with this act, are hereby repealed.”
    Submission of a controversy upon an agreed statement of facts under section 1279 of the Code of Civil Procedure.

      Augustus S. Hutchins and Waldo Hutchins, -for tbe plaintiff.

      Frederick R. Goudert, for tlie defendant.
   Maoombisk, J.:

This case comes up upon an agreed state of facts and is submitted under the provision of the Code of Civil Procedure. The plaintiff seeks to restrain the defendant from laying or constructing its railway tracks on the surface of the southern boulevard between North Third avenue and Boston avenue. The southern boulevard is a public highway, constructed in pursuance of the provisions of chapter 290 of the Laws of 1867, in the twenty-fourth section of which act it is declared that said road, when constructed, should be kept and maintained for public use as an avenue and boulevard, and, except for the purpose of crossing the same, no railway or tramway shall be laid or constructed thereon, or any part thereof, by any pei’son or corporation whatsoever, without a special act of the legislature of this State for that purpose first had and obtained. No special act of the legislature has been passed authorizing the construction by the defendant of the railway therein or on any part of it. The plaintiff, which is a domestic corporation, organized in pursuance of section 7 of chapter 361 of the Laws of 1863, was, by that act, authorized to lay railway trades and operate the same upon the Boston Post road, now North Third avenue, from Harlem Bridge to Fordam, and through various streets and avenues in that part of the city of New York which was formerly the town of Morrisania, and now operates the same. The defendant is a corporation organized under the provisions of chapter 252 of the Laws of 1881, for the purpose of constructing, maintaining and operating a street surface railway upon what is known as the southern boulevard in the city of New York, within limits particularly stated, and has, for that purpose, acquired the consent of a majority in value of the owners of land along its route and has also acquired the right from the municipal authorities of the city of New York so to construct its tramway. .The plaintiff, being the owner and in possession of lands on said boulevard, would be injured by the threatened action of the defendant.

The general question is whether or not the act of 1884, chapter 2o2, did, by the eighteenth section thereof, repeal the twenty-fourth section of the act of 1867. The act of 1884 is general in its provisions and was passed for the purpose of permitting corporations to be formed for the conveyance of passengers and freight on the surface of the streets in the various cities, towns and villages of the State, and declares (see. 18) that “ all acts and parts of acts; whether general or special, inconsistent with this act are hereby repealed.” It is plain that if the act of 1884 is inconsistent with the act of 1867 in any of its provisions, the latter is by so much necessarily repealed by the subsequent legislation. The act of 1884 is not only general but is merely a permissive act. Any person, by conforming to its provisions, may build railroads in the various cities, towns and villages of the State. It did not, in terms, seek to deprive persons of any rights which they had already acquired, by special legislation, in and along any of the streets of such cities, villages or towns. I do not find, in the act of 1884, anything inconsistent with the maintenance and preservation of any exemption which had theretofore existed in particular localities, made by the legislature. As it was competent for the legislature, in the absence of previous legislation exempting this boulevard, to have exempted it by some suitable expression in the act of 1884, so I cannot see why it should not be deemed capable of standing together with the subsequent legislation, in the absence of a direct and positive repeal thereof.

It is true that subsequent to the act of 1867 the people of the State prohibited, by their Constitution, any special legislation concerning local affairs, and the act of 1884 was passed in pursuance of the later provision of the Constitution in that respect and was necessarily of general application throughout the State; but it by no means follows that it was not competent for the legislature, either in the act of 1884 or by an independent act, to repeal section 24 of the act of 1867, otherwise the act of 1867 would be unrepeatable and not a proper subject of future consideration by the legislature, and it is to that extent that the defendant’s counsel seeks to push the case. But it is idle to deny the power of the legislature to repeal the act of 1867, though that act itself declared it could be only repealed by a special act passed for that purpose alone, and such special legislation is now prohibited. One legislature has not the power to bind a subsequent legislature by any provision which would prohibit a new inquiry by the legislature into the subject-matter and new legislation thereon. Hence it is that the sole question is not what the legislature could have done, but what it has done by the act of 1884, and it is to that consideration alone that the facts in this case seriously call our attention. Moreover, the subject-matter of the statutes is not so nearly alike or germain as to warrant any inference of any intention on the part of the legislature to repeal the former, in the absence of clear and apparent inconsistencies between them and in the absence of positive words of repeal, of which there is no evidence in this case.

The title of a former act is, “An act to authorize the towns of Morrisania and West Farms to widen, make, extend and improve a highway in said towns called the Southern Boulevard.” It was an important and elaborate act to enable the people of these towns, voluntarily and in a manner to suit themselves substantially,- to substitute a very commodious roadway for other roads, to be called a boulevard, and in consideration of its so being done and thrown open to the public use, and for this consideration, doubtless, the clause was inserted prohibiting any street railway from laying its tracks thereon except to cross it. To some extent, therefore, it seems to have been a delegation to the inhabitants of these towns to make and maintain, through private enterprise largely, a boulevard or spacious avenue having special attractions which had been obtained only through considerable expenditure of money voluntarily undertaken by their citizens. Why, therefore, should this act be held to be repealed by another act which confessedly does not refer to this highway in terms and which is of general application only, not for the construction of boulevards or avenues, but “ An act to provide for the construction, extension, maintenance and operation of street surface railroads and branches thereof in- cities, towns and villages ? ” There is not that unity of purpose in the two acts which would naturally be sought for where it was attempted to establish a repeal of the former by the latter, by reason of the inconsistencies of the latter act with the provisions of the former. The word “boulevard” is not wholly without significance in this connection, although, of course, I do not rest my judgment entirely upon that or to any considerable extent upon it. It is noticeable that it is descriptive of a highway as being something unusual and special and which has been attained by some extraordinary means, and for the maintenance of which there seems to be peculiarly persuasive considerations, though by giving it the name of boulevard it is not taken out of the category of “ streets, roads and avenues ” mentioned in the act of 1884; and yet it has some little bearing upon the question under consideration, as it serves to emphasize the purpose of the persons at whose request, doubtless, the legislation was originally had.

Perhaps as clear a statement of the rule of construction as the books contain was made by Judge Nelson in the case of Mitchell v. Halsey (15 Wend., 243), where he says : The inference that the repealing clause refers to this section of the act of 1819 isa strained and forced inference. If the legislature had intended to abolish special local regulations, incidentally bearing upon public highways within a particular district, they should, and I think would, have been more explicit. It was an easy matter and would have removed all doubt.”

Mr. Justice Willes says, also, in Thorpe v. Adams (L. R., 6 C. P., 125, on p. 138): “ The good sense of the law, as laid down by my lord (referring to Bovill, C. J.), is quite obvious, because, if a bill had been brought into parliament to repeal the local Act, it never would have been allowed to pass into a law without notice to the parties whose interests were to be affected by it, and «opportunity being given to them to be heard in opposition to it, if necessary; whereas a general provision in a public Act is discussed with reference to general policy and without any reference to private rights, with which there is no intention on the part of the legislature to interfere.”

See, also, In the Matter of the Evergreens (47 N. Y., 220), where 'it is held that both acts should be permitted to stand and have full effect unless there was a necessary inconsistency between them. And McKenna v. Edmundstone (91 N. Y., 231) and other cases which have been referred to, such as Harrington v. Trustees of Rochester (10 Wend., 541), People ex rel. Lawrence v. Supervisors of Westchester (73 N. Y., 173), which were cases where the subject-matter legislated upon in the acts claimed to be conflicting was germain, and where the provisions of the latter act necessarily repealed the former statute because oí actual inconsistencies in the general subject-matter covered by the respective acts.

It follows, therefore, that there is no conflict between the provisions of section 24, chapter 290 of the Laws of 1867 and any provision of chapter 252 of the Laws of 1884, and that the said section 24 of the Laws of 1867 was not repealed by the latter act, and that the southern boulevard is still exempt from having laid upon it, except to cross it, the tracks or tramways of any surface railroad company, and that, consequently, the defendant has not the right to carry into effect its purpose and should be restrained from so doing.

Judgment should be entered accordingly.

Beady, P. J., and Daniels, J., concurred.

Judgment ordered for plaintiff, as directed in opinion.


author: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLINTON H. KIMBALL v. NICHOLAS HAUGHTON and Others, as and Composing the Board of Commissioners of Excise in and for the City of New York.

      Canceling of a, license 5y the excise commissioners — when an appearance waives a defective service of notice — two commissioners may act if the third has notice of the meeting — the proceedings are summary in character — what is required to justify a cancellation of the license.

    Upon tlie hearing of a certiorari, issued to review the decision of the commissioners of excise in vacating and annulling a license issued to the relator, an objection was taken that the summons was not served upon the relator himself, but upon a person who, in his absence, was found in the possession and control of his establishment.

      Held, that the objection was deprived of all force by the fact that an attorney and counselor appeared for the relator at the time and place designated for the return, and without objecting to the mode of service moved for and obtained an adjournment of the hearing.
    That an objection that the order and decision were made by two of the three commissioners was also without force, as it appeared that the third had notice of the time and place to which the hearing was adjourned, he having participated in the making of the order for the adjournment.
    The statute does not require the same strictness, by way of proof, in a proceeding taken to annul a license for the sale of intoxicating liquors, as is required in an action or special proceeding in court.
    Section 4 of chapter 549 of 1873 does not prescribe the legal mode through which the commissioners may become satisfied that the person proceeded against has failed to observe the statutory provisions upon which the continuance of his license may depend, but it has provided, in very general language, that when the commissioners shall become satisfied of the necessary fact, after summoning before them the person proceeded against, they shall revoke, cancel and annul his license.
    The proceeding is to be summary and to depend upon such reliable information as the commissioners may be able to obtain, to a reasonable certainty, establishing the existence of the necessary fact.
    Certiorari to review the order and decision of the commissioners of excise, vacating and annulling a license issued to the relator.

      John O. Byrne, for the relator.

      Elliot Scmdford, for the respondents.
   Daniels, J.:

The objection taken to the proceeding that the summons was not served upon the relator himself, but upon the person who, in his absence, was found in the possession and control of his establishment, is deprived of its force by the fact that an attorney and counselor appeared for him at the time and place designated for the return, and without objection to the mode of service moved for and obtained an adjournment of the hearing. If it had been intended to resist the proceeding on account of this irregular mode of service, the objection should have been taken before the commissioners, when it might have been obviated by issuing another summons and securing the service of it personally upon the relator.

The objection that the order and decision were made by two of the three commissioners is also without force, for it appeared that the third had notice of the time and place to which the hearing was adjourned by having participated in the making of the order for the adjournment. And when that is the fact, under the statute defining the powers and course of proceedings of such officers, the action and determination of a majority will be effectual for all the purposes of the case.

The statute does not require the same stidetness, by way of proof, in a proceeding taken to annul a license for the sale of intoxicating liquors, as is required in an action or special proceeding in court. By section 4 of chapter 549 of the Laws of 1873, the board of excise of any city, town or village may at any time, and upon the complaint of any resident of said city, town or village, shall summon before them any person or persons licensed, and if they shall become satisfied that any such person or persons has, or have, violated any of the provisions of this act, or of the acts amended by it, they shall revoke, cancel and annul the license of such person or persons, which they are thereby empowered to do. It has not prescribed the legal mode through which the commissioners ma.y become satisfied that the person proceeded against has failed to observe the statutory provisions upon which the continuance of his license may depend. But it has provided, in very general language, that when the commissioners shall become satisfied of the necessary fact, after summoning before them the person proceeded against, they shall revoke, cancel and annul his license. The proceeding is evidently designed to be summary and to depend upon such reliable information as the commissioners may be able to obtain, to a reasonable certainty, establishing the existence of the necessary fact. In the present case they received information from the district attorney of the county that the relator’s establishment was of a disreputable character and made the resort of evil-disposed persons. And this was further proven by the evidence which had been taken upon the trial of James McQuade, in the Court of Sessions, concerning a criminal offense alleged to have been committed at the saloon of the relator. No objection was taken by his counsel, who was present at the hearing, to this evidence, but an application was made for the further adjournment of the proceeding on the ground that the relator himself was unable to attend bj reason of the fact that he was confined in prison. The evidence submitted to the commissioners was such as to prove that the relator’s place was an improper one to be licensed under the provisions of the statute, and they were accordingly authorized upon the proof to annul, cancel and vacate his license as they did. The evidence was sufficient for that purpose as long as no proof whatever was given, on behalf of the relator, tending to reduce its effect or in any manner excuse him from the truth of the charge it tended to prove.

It is not necessary to determine the objection whether or not a writ of certiorari can be issued to review the proceedings and decision of the commissioners of excise under this act, for in this case neither of the objections which have been taken in support of the writ is well founded.

The decision of the commissioners should, therefore, be affirmed, with costs, and the writ dismissed.

Bradv, P. J., and Daniels, J., concurred.

Decision of commissioners affirmed, with costs, and writ dismissed.


text:
    In the Matter of the Estate of NATHANIEL GILMAN, Deceased.

      /Surrogate — power of, to control securities in the hands of tfie executors — to compel their deposit in a trust company.

    When it is made to appear to a surrogate that securities belonging to an estate are not entirely safe or free from risk while remaining in the possession of the executors, he may direct such securities to be deposited in a trust company, there to remain until the further order of the Surrogate’s Court.
    The facts which will justify the making of such an order, considered and held to exist in this case, and to require the affirmance of an order requiring the executors to deposit all United States bonds and interest-bearing notes, together with their coupons belonging to the estate, in the Union Trust Company.
    Appeal by two executors from an order made by the surrogate of the county of New York, directing the deposit of all the United States bonds and interest-bearing notes, together with their coupons, belonging to the estate of Nathaniel Gilman, which were in the possession or under the control of the executors, with the Union Trust Company, there to remain until the further order of the Surrogate’s Court of the county of New York; and the hearing of a motion made to dismiss such appeal.

      Henry JS. Knox, for the appellants.

      James Hudson, Latham G. Reed and Raphael J. Moses, Jr., for the respondents.
   Daniels, J.:

The order from which the appeal has been taken was made on the 24th of May, 1866, twenty years prior to the argument of this appeal. Because of the delay in bringing the appeal to a hearing, and for the reason that other parties interested in the estate had, under agreement made, received portions of the fund created by the deposit, the motion was made to dismiss the appeal. And without placing any stress upon the latter ground, if it should be important so to direct, the appeal should be dismissed for this great delay in its prosecution. An explanation of it has to a certain extent been made, but that explanation fails to excuse the delay to bring the appeal to a hearing during the long period that has followed the service of the petition.

But in the view which has been created by the examination of the case, it is not considered important, for the protection of the rights or interests of the moving parties, that a dismissal of the appeal should be ordered. The executors of the estate, to whom letters testamentary have been is3ued by the surrogate of the county of New York, were the only persons affected by the order, and it is these executors who brought the appeal now under consideration.

They claim the order to have been unauthorized, and also that the facts did not justify the surrogate in making it, and thereby requiring the deposit of these securities. The securities affected by the order amounted to the sum of about $210,000, and it was made upon a state of facts indicating to the mind of the surrogate that these securities were not entirely safe or free from risk while they remained in the possession of the executors. And if he was right in deducing that conclusion from the facts which were made to appear, then it followed that the order was legally made by him, for by the statute it was made his duty to direct and control the conduct of the executors of this estate. (3 R. S. [6th ed.], 325, § 1, sub.3.) This direction has been provided in broad and unqualified language, and seems to have been designed to delegate to the surrogate the power to direct and control the conduct of executors and administrators, so far as that may appear to become necessary for the protection and safety of the property committed to their hands, and to promote its preservation until a distribution can be made of it among the persons entitled to receive it.

The surrogate was also empowered, by subdivision 6 of the same section, to administer justice in all matters relating to the affairs of deceased persons, and that can only be done by such orders as appear to be necessary for the protection and preservation of the estate. The authority of the surrogate under this section, and more especially under section 63 (3 R. S. [6th ed.] p. 99) of the statutes, was considered in Wood v. Brown (34 N. Y., 337), and it was deemed to justify as broad a construction as that which has now been suggested, for it was there held that the surrogate might make any order he deemed necessary in relation to the custody of the notes, bonds, mortgages and other securities belonging to the estate. And similar in its effect was the decision of the chancellor in Jenkins v. Jenkins (1 Paige, 243). As to the power of the surrogate to make the order, there accordingly seems to be no reasonable ground for entertaining any substantial doubt. The application was made for it upon the petition of Isaac Redington, who was another of the executors of the estate, to whom the letters testamentary had been issued, and Joanna B. Gilman, the widow of the testator, Anna R. Gilman, Charles B. Gilman, Theophilns Gilman and Frazer Gilman, who were children of the testator, each entitled to one-tenth part of the residue of his estate. This executor, by the language of the petition, appeared to have intended to represent the children of his deceased wife, who was also a daughter of the testator. These children were two in number, jointly entitled to one-tenth of the residue of such estate. Theophilus Gilman and Frazer Gilman were minors, or infants, under the age of twenty-one years, residing with their mother, who by the petition represented their interests in the estate for the protection of the court. It is true that the allegations contained in the petition were not as broadly made as this, but the statements presented by the executor, Redington, concerning his two children, and by the widow concerning these infants, are consistent with no other conclusion than that they were intended to invoke the aid and assistance of the surrogate for the protection of the rights and interests of these children and infants in this estate, and that was sufficient to render it the duty of the surrogate to consider what prudence and discretion required should be ordered concerning the disposition and safety of these securities. They were securities which could readily be disposed of and the estate deprived of their benefit by any sale of them the executors might be inclined to make. In support of the application, it appeared that the two executors, George F. Gilman and Edward McClellan, failed to co-operate with the executor, Redington, in the management of the property and affairs of the estate. A disagreement had arisen between them, and he, as well as the other petitioners, considered that the estate committed to their charge and custody was not managed as the law required that to be done by these acting executors. They had delayed the making and filing of an inventory of the estate from the time they qualified as executors in May, 1861, until the 18th of August, 1863, and that was then filed only under the effect of mandatory directions made for that purpose by the surrogate. After further resistance upon their part, an order was also made on the 4th of November, 1863, requiring the executors to account, but they failed to present their accounts until the 5th of January, 1865, although active proceedings to secure this presentation were carried on against them in the Surrogate’s Court. A reference was then made to an auditor for the examination of the accounts, and the hearing and disposition of objections taken to them. The evidence of the two executors was taken before the auditor, and that has been made a portion of the foundation of the application on which the order was made, from which this appeal has been taken. By that evidence it appears that the executor, George F. Gilman, who is a son of the testator, allowed the affairs of the estate to be managed by the other executor, Edward McClellan. The funds and property of the estate were large, and substantially committed to the custody and care of this executor, and accounts were kept with themselves in their joint names as individuals with the banks in which the moneys of the estate were deposited. McClellan was engaged in business in the city of New York, and was not a person of sufficient responsibility to be intrusted with this large amount of property, in which other persons were entitled to share, as well as his own wife, under the will of the testator. These facts indicate a persistent indisposition ou the part of the two executors to comply with the directions of the law concerning their official conduct, and the manner in which the estate was allowed to be controlled and managed, indicated that there might be danger concerning its ultimate safety and preservation to the time when the court should direct its distribution among the persons entitled to receive it. It was a measure of prudence, and no more than reasonable care, therefore, to require these executors to deposit the securities with the trust company, where they might surely remain in safety for thS final benefit of the persons entitled to receive them. It is not uncommon that losses are sustained by the estates of deceased persons by a course of conduct like that adopted by these two executors, and it was the duty of the surrogate to guard against the probability, as well as the possibility, of such loss. And if more stringency was observed in this respect in the administration of the estates of deceased persons by the Surrogate’s Court, less occasion would arise to complain of irrecoverable losses by persons deprived of the benefit designed to be secured to them by the disposition of the property of their parents, relatives and other friends.

The provision of the order, directing that the deposit should be for the security of the individual shares or interests of the petitioners, has been made the subject of special complaint, but evidently without reason, for this order in no manner placed these securities beyond the control and further direction of the surrogate. It was not intended to be adjudged that the petitioners were to be exclusively benefited by these securities, but that, their interests in the estate should be protected by this deposit, and the extent to which that protection would be necessary or would be afforded would depend upon the rights of the parties as they should afterwards appear to be upon an accounting and settlement of the estate and by the decree to be made by the surrogate. They were still subject wholly to his control in this manner, and whatever justice may require to be directed concerning them, and whatever disposition the situation of the estate may indicate should be made, are still subject entirely to tbe control and disposition of tbe surrogate. This part of the order, therefore, is not liable to the objection which has been made against it. Its primary purpose was the protection of the petitioners, but without directing or discriminating against the interests of either of the other persons in the estate, so far as to prevent their rights to be properly guarded and protected by whatever might afterwards be deemed to be proper for the disposition of the property. And this construction has, as a matter of fact, been followed and acted upon by the surrogate. The order was not only within the power of the surrogate, but its propriety was clearly indicated by the facts as they were made to appear, and it should be affirmed, together with ten dollars costs and also the disbursements, and the motion to dismiss the appeal should be denied, without costs.

Brady, P. J., and Macomber, J., concurred.

Order affirmed, with ten dollars costs and disbursements, and motion to dismiss appeal denied, without costs.


author: Macohber, JT.:

text:
    PATRICK CLEARY, Respondent, v. GAMALIEL R. CHRISTIE, Appellant.

      Putting in fictitious sureties in an undertaking on appeal— Code of Civil Procedure, sec. 14, sub. 2 — it must be adjudged that actual prejudice had been occasioned — Code of Civil Procedure, see. 2281.
    In these proceedings, instituted by the plaintiff to have the defendant adjudged guilty of contempt, under subdivision 2 of section 14 of the Code of Civil Procedure, in procuring a stay of proceedings, after taking an appeal, by putting in fictitious sureties in the undertaking given upon the appeal, an order was made adjudging him guilty of contempt and directing his imprisonment until he should pay to the plaintiff the amount of the judgment recovered against him and ten dollars costs.

      Meld, that as it was essential to the validity of an order, which undertakes to recompense the party injured in this manner, by the imposition of a fine, that an adjudication or a decision appear establishing that the person for whose benefit the fine has been imposed has in truth and fact been prejudiced by the unlawful proceedings complained of, or that the court can see that he might have been so prejudiced, and as no such adjudication was made in this case, that the order should be reversed, the General Term having no power to correct the error on appeal.

      Appeal from an order of the Special Term, adjudging the appellant guilty of contempt and directing his imprisonment until he should pay to the plaintiff the sum of $762.50, which was the amount of the judgments previously obtained against him by the respondent, with ten dollars costs of motion.

      Miller <& Savage, for the respondent.

      Howe & Hummel, for the appellant.
   Macohber, JT.:

The proceedings instituted against the defendant are based upon subdivision 2 of section 14 of the Code of Civil Procedure, which gives the court power to punish, by fine and imprisonment, or either, a party to the action or special proceeding for putting in fictitious bail or a fictitious surety. After the judgment had been obtained by the plaintiff against the defendant, and simultaneously with the appeal by the defendant therefrom, an undertaking, in the usual form, was served upon the respondent’s attorneys. The sureties to this undertaking (Carl Pfuffer and Anton Miller) are clearly shown to be fictitious persons, having no known place of residence, or even of existence, so far as this case discloses the fact, and consequently the party putting in such sureties upon appeal is amenable to the punishment provided for it by the Code of Civil Procedure. Inasmuch as, throughout the affidavits and the testimony taken before the referee, it is undisputed that these supposed sureties are mere myths, the principal question for the consideration of this court is, whether or not the defendant took such a personal and active part m procuring the execution of the undertaking as to render himself amenable to the punishment of the statute. The defendant testifies positively that he had nothing to do with the procuring of the sureties, but that he left that matter entirely in the hands of his attorney, who voluntarily offered to procure them, and the defendant at the time paid his attorney the sum of fifty dollars, which, as he was told by the attorney, was to be equally divided between the two sureties. The notary public, before whom the acknowledgment and affidavits were made, testifies that it was the attorney, and not the party, that brought the supposed sureties before him, and it was upon the introduction of the attorney alone that he made the usual certificate of acknowledgment to tlie undertaking by which he certified that the parties making the acknowledgment were personally known to him. He says that that part of the certificate was based entirely upon the representation made to him by the defendant’s attorney. This testimony, if true, goes far to show that if any mistake has been made by the plaintiff in instituting these proceedings, it is in the omission to join as a party thereto the former attorney of record of the defendant. But he is not a party, and no order that can be made in this proceeding can affect him in a legal aspect. It is due to the attorney to say, however, that in his testimony he denies that he procured the sureties or that he received the fifty dollars from the defendant therefor. He does admit substantially that he did take the men before the notary public, and that the notary’s action was based upon what he, the attorney, told him. He further testifies that the defendant personally brought to him the persons who executed the undertaking in the name of Carl Pfuffer and Anton Miller. Confessedly, whatever was done in the premises was for the benefit of the defendant himself. He has reaped the advantage of having the case against him stayed upon appeal for a considerable length of time. He has profited by the acts done in his behalf, even though they were undertaken exclusively by his agent, but in order to hold the defendant for contempt it must be shown that he either personally participated in the- unlawful proceeding or that he authorized or had knowledge of it. This is sufficiently shown by the testimony of his former attorney of record. But, aside from s-uch evidence, if the acts performed by the attorney were done under such circumstances as that the defendant had reason to believe they were irregular, he must be held to all of the consequences flowing therefrom. The case is not devoid of circumstances and inferences from the whole testimony which connect the defendant actively with the fraud so perpetrated upon the court, aside from the positive allegations of the attorney. While he claims to have been able to furnish bail from among his list of acquaintances, he cheerfully submitted to the exaction of fifty dollars, according to his own testimony, to be paid to some persons to him unknown, to enable him to avoid the unpleasantness of calling upon his acquaintances for aid. The names of the proposed sureties, as he says, were not given him, nor their occupations or residences. Hnder these circumstances any man of ordinary intelligence, if entirely honest, would have surmised that some subterfuge or irregularity was to be resorted to in order to effect what he so much desired, namely, a stay of proceedings upon the judgment against him. The slight corroboration of actual knowledge of the defendant in these proceedings is found in the fact testified to by him that he was told by his attorney, shortly after the putting in of this fictitious bail, that the uase had been tied up, for aught he knew, for twenty years to come. Nor is this all; the defendant testified that after the dismissal of the appeal his attorney requested him to say to any persons who should make inquiries about the sureties upon the undertaking that he did not know anything about them, but they were provided by a friend of his for his accommodation, inasmuch as he, the defendant, lived in the State of New Jersey at the time. The defendant made no objection to this and seems to have acquiesced in the suggestion and recommendation of his counsel, and that, too, under such circumstances as show that he was not wholly unacquainted with the original scheme and fraudulent purpose of putting in fictitious bail.

"While, therefore, the defendant’s own testimony makes out a strong case against his former attorney, and goes far to show, if true, that all of the parties who were concerned in the deceit are not before the court, yet other facts and circumstances in the case, and proper inferences therefrom, show, as the referee has found as matter of fact, that the contempt was committed by the defendant. These considerations would lead to an affirmance of the order, provided it was drawn and entered in accordance with the facts established and in pursuance of the somewhat rigid provisions of the statute. The offense, as it has been described, is not a criminal contempt. Its punishment is determined by sundry subsequent sections of the Code of Civil Procedure, beginning with section 2266. The order should have provided for the punishment of the defendant, in pursuance of section 2281, which is as follows: “If it is determined that the accused has committed the offense charged; and that it was calculated to, or actually did, defeat, impair, impede or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court or before the judge or referee; the court, judge or referee must make a final order accordingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the case requires,” etc. "We find, on examination of the order appealed from, that the defendant is convicted in reality of only the contempt of court, in putting in a false and fictitious bail or sureties. In the absence of an adjudication that such acts impaired or impeded the rights of the plaintiff, the punishment could not be so severe as has been imposed by the Special Term upon the defendant. But there is no adjudication that the facts were calculated to, or actually did, defeat, impair, impede or prejudice the plaintiff’s rights. It is true that there were sufficient facts before the court to enable such an adjudication to be made; but it has not been made, not even inferentially. The material part of the order is as follows: “ Ordered and adjudged that said defendant, Gamaliel R. Christie, is hereby adjudged guilty of contempt of court in putting in such false or fictitious bail or sureties. And it is hereby ordered and adjudged that the sheriff of said county of New York arrest and commit to prison in his county said Gamaliel R. Christie, and that he be kept imprisoned until he shall pay, or cause to be paid, to said sheriff, for said plaintiff or his attorneys, the full amount of said judgment for seven hundred and twenty and eighty one-hundredths dollars ($720^^), with interest from its entry, June 16,1884, and also the amount of the said judgment for costs, on the dismissal of the appeal, for forty-one and seventy one-hundredths dollars ($41^^), entered May 14,1885, with interest and also ten dollars costs of this motion.”

It is evident that there was some inadvertence in the preparation of the terms of this order, but we have no power to correct it on this appeal; on the contrary, though reluctantly, we feel constrained to reverse the same, leaving the plaintiff to proceed as he may be advised, for it is essential to the validity of an order which undertakes to recompense the party injured in this manner, by the imposition of a fine, that an adjudication or a decision appear that the person for whose benefit the fine has been imposed has, in truth and fact, been prejudiced by the unlawful proceedings complained of, or that the court can see that he might have been so prejudiced. (Clark v. Bininger, 75 N.Y., 344; Sandford v. Sandford, 24 N.Y.Week. Dig., 208.)

The order appealed from is reversed, but without costs.

Daniels, J., concurred; Brady, P. J., concurred in the result.

Order reversed, without costs.


author: Maoombeb, J.;

text:
    RALPH L. ANDERTON, Jr., Respondent, v. ALFRED WOLF, Appellant, Impleaded with THE NEW YORK CONCERT COMPANY (LIMITED) and Others

      Pleading — a demurrer must specify the defect objected, to— Code of Civil Procedure, sec. 490 — action by a stockholder to prevent waste of corporate funds — when no demand need be first made on its trustees to bring an action.

    Appeal by the defendant Wolf from an interlocutory judgment, entered upon an order overruling the appellant’s demurrer interposed to the complaint.
    The demurrer to the amended complaint is based, first, on the ground that there is a defect of parties defendant, in that it appears, upon the face of the complaint, that there are nine directors of the defendant company, three of whom, namely, Webber, Myers and Doty are not joined as defendants ; that there are three inspectors of election, of whom only two are joined as defendants, and that certain promissory notes have been made by the defendant Rudolph Aronson, which have been transferred by him, and the transferrees or holders are not made parties.
    The second ground of the demurrer is, that there are several distinct causes of action set forth in the complaint, and they severally do not affect this defendant, except one ; that causes of action united in said amended complaint appear, upon the face thereof, not to belong to any one of the subdivisions of section 484 of the Code of Civil Procedure, but, on the contrary, they do belong to different subdivisions thereof ; that causes of action upon claims not arising out of the same transaction, or transactions connected wfith the same subject of action, are included in the amended complaint; that legal and equitable actions, not referring to the same persons or subject-matter, are united in the complaint.

      The third ground of the demurrer is, that the amended complaint does not state facts sufficient to constitute a cause of action.
    The fourth ground is, that the amended complaint, in the paragraph relating to or stating a cause of action against the defendant Conried, does not state facts sufficient to constitute a cause of action against this defendant.
    The fifth ground of the demurrer is, that the amended complaint, in the paragraph relating to or stating a cause of action against the defendants Edward Aronson and Henry R. Smith, does not state facts sufficient to constitute a cause of action against these defendants.
    The court at General Term said : “ The fifth and second grounds of the demurrer come respectively under subdivisions 6 and 7 of section 488 of the Code of Civil Procedure, and the particular objection or defect relied upon is required (by sec. 490) to be specificalty pointed out. In respect to this requirement of the Code, the demurrer is wholly defective. As to the first ground of the demurrer, it does not appear upon the face of the complaint that there was a third inspector of election, nor does it appear therein who were the owners and transferrees of promissory notes alleged to have been executed by the defendant Aronson. While, therefore, a different argument might have been based upon the demurrer, which is addressed alone to the defect of parties defendant in respect to the non-joinder of the directors of the defendant corporation, yet the demurrer must, as a whole, fail because that portion of it, even though good, cannot be sustained unless the whole of that ground of the demurrer is properly taken, otherwise the court would have to sustain one ground of the demurrer in part and overrule it in part which is clearly not contemplated by the provisions of the Code of Civil Procedure. Moreover, what interest has this defendant in having the other defendants, for whose absence he has instituted this ground of the demurrer, brought into the case? In order to sustain a demurrer for a defect of parties, it must appear that the party demurring has an interest in having the omitted parties joined, or that he is prejudiced by the non-joinder. (Wooster v. Ghamberlin, 28 Barb., 602; IÁttéll v. Sayre, 7 Hun, 485 ; Moore v. liegeman, 6 id., 290 ; Sanders v. Village of Yonkers, 63 N. Y., 489.)

      “ The second ground stated in the demurrer is also equally fatally defective. Here, too, the rule requires the objection and supposed defect to be particularly and specifically pointed out by the demurrer itself. This thing the demurrer has failed to do. It states that there are several and distinct causes of action set forth in the complaint which do not affect the defendant, hut it does not specify what they are. It alleges that several causes of action therein stated do not belong to any one of the subdivisions of section 484 of the Code of Civil Procedure, but it does not specify them. It also alleges that causes of action upon claims not arising out of the same transaction or transactions connected with the same subject of action are included in the complaint, but these, too, are not particularly pointed out. It also alleges that legal and equitable actions, not referring to the same persons or the subject-matter, are united in the complaint, but wherein they are thus united and what particular actions are supposed to be equitable and what legal it does not mention.
    “ The third, fourth and fifth grounds of the demurrer may be considered together, and may be treated as a proper form in which to raise the question that, upon the face of the complaint, it appears that the plaintiff has not stated facts sufficient to constitute a cause of action against the demurring defendant. This ground of the demurrer wholly misapprehends the scope and legal bearings of the complaint.”
    After considering the allegations of the complaint the opinion proceeds:

      “ We have, therefore, this defendant introduced in such a manner as to entitle the plaintiff to certain relief, provided the facts therein alleged are true.
    “ The action is brought by the plaintiff as one of the stockholders of the defendant company, and is instituted in his own behalf and in behalf of all others similarly situated, and it is alleged that the defendant, Rudolph Aronson, controlled the majority of the board of directors who are friendly to him, to aid and assist him in illegal acts spread out in the complaint, and without whose consent or direction this action could not be brought. * * *
    “No demand was made upon the officers or directors of the corporation to bring an action of this description, and the question mainly discussed at the argument relates to a supposed barrier against the plaintiff’s further progress, inasmuch as such demand has not been made. The general rule doubtless is, that before a stockholder can institute an action 'which the corporation itself is capable of beginning, but fails to begin, a demand must be made upon the corporation or its officers. (Gremes v. Gouge, 69 N. Y., 154; Spencer y. Clark, Gen; Term, First Dep., October, 1885.) In the latter case, no demand had been made upon the trustees. Neither did it appear that the affairs of the corporation were under the management of any board of officers or trustees indisposed to institute the suit required or make a defense to the mortgage which was then in controversy.
    “ On the other hand, where it is shown by proper allegations that the corporation is under the control of those who must be defendants in the suit by which alone the proper relief can be had, a demand that such action be brought is not required. Where a fraudulent breach of trust is shown, and it is apparent on the face of the complaint that the corporation cannot move even for the protection of the stockholders who are the cestwi que trust of the corporation, then a stockholder may be permitted, without a demand, to seek in his own behalf, and in behalf of such others as may join with him in the action, to undo the fraudulent and unlawful acts of those who liave perverted the uses and purposes of the corporation and who have despoiled the stockholders of their property. (Brewster v. Hatch, 10 Abb. N. C., 406; Heath v. Erie Railway Co., 8 Blatch., 347; The County of Tazewell v. Farmers' Loan and Trust Co., 12 Fed. Hep., 752.)
    “The interlocutory judgment, overruling the defendant’s demurrer, should be affirmed, with costs, with leave to the defendant to withdraw the same and answer upon payment of the costs of the demurrer.”

      Franklin Bien, for the appellant.

      A. J. Dittenhoefer, for the respondent.
   Opinion by

Maoombeb, J.;

BRAdy, P. J., and Daitiels, J., concurred.

Judgment affirmed, with costs, with leave to defendant to answer on payment of costs.


author: Daniels, J.;

text:
    MANLY N. CUTTER, Appellant, v. CORA MORRIS, Respondent.

      Practice — the court should refuse to submit the case to the jury, upon the ground that the evidence is insufficient to support a, verdict in favor of a party, where, if a verdict were found in his favor, the court would set it aside as being against the weight of the evidence.

    Appeal from a judgment, entered on an order made at tbe circuit directing tbe dismissal of the plaintiff’s complaint.
    In this action tbe plaintiff claimed to recover the value of bis services as an architect in drawing plans and mating estimates for and concerning the erection of an addition to a bouse, at the request of and for tbe defendant. At tbe close of the plaintiff’s evidence it was considered by tbe court that be had failed to establish tbe fact that be was employed to render the service by tbe defendant, and whether tbe evidence sufficiently tended to prove this fact, to entitle tbe plaintiff to submit tbe question .to the jury, is tbe point upon which tbe appeal depends.
    The court at General Term, after reviewing tbe evidence produced upon tbe trial, said, in affirming tbe action of tbe court below: “ Tbe evidence was too uniformly against him, which was reliably furnished by tbe documents introduced into tbe ease in the 'course of bis own examination as a witness. Their effect was to overcome what may be described as an ambiguous interview between tbe plaintiff and the defendant, concerning this work, and to settle tbe question against him that it was the work of tbe husband, and so recognized by him throughout, and for which be alone should be held accountable. As the proof appeared the court was right in withdrawing the case from the consideration of the jury. This general subject was considered in Wilds v. Hudson River Railroad Company (24 N. Y., 430), where, in the course of the prevailing opinion, it was held that- where the court would be justified in setting aside a verdict as clearly against the weight of evidence, it was its duty to nonsuit the plaintiff. (Id., 433.) And the same rule was declared in JDeyo v. New York Central Railroad Company (34 N. Y., 9). The authorities were there examined and the result was stated to be, that cif the evidence is not sufficient to warrant a verdict, or if the court will set aside a verdict if found, it is the duty of the court to nonsuit a plaintiff.’ (Id., 13.) It is true that this rule was not followed in Colt v. Sixth Avenue Railroad Company (49 N. Y., 671). But as these authorities do not appear to have been intended to be overruled by this decision, and the rule seems to be founded in good sense, the case in which this last decision was made may be considered to be exceptional, on account of some peculiar circumstances, not appearing by the report. The rule itself is further maintained by Wombough v. Cooper (2 Hun, 428) and by Commissioners, eto., v. Ciarle (94 U. S., 278). There, also, the authorities were examined and they were considered to maintain the proposition which has been stated. It was there added that: ‘ Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury, but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury there is or may be, in every case, a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the -party producing it, upon whom the burden of proof is imposed.’ (Id., 284.)

      “ The evidence in this case, concerning the employment of the plaintiff by the defendant, is not only of this infirm character, but by that which was written and forms the most reliable basis of what was the plaintiff’s relation to this work, this slender evidence was wholly overthrown, and it was the duty of the court to exercise its authority, as it did, and dismiss the plaintiff’s complaint.

      “ The judgment appealed from should, consequently, be affirmed.”

      John Henry Hull, for the appellant.

      Charles H. Coddington, for the respondent.
   Opinion by

Daniels, J.;

Brady, P. J., concurred.

Judgment affirmed.


author: Smith, P. J.:

text:
    ELIAS A. MEAD, Respondent, v. CHARLES E. PARKER, Appellant.

      Statute of frauds — when a guaranty given upon the assignment of a bond and mortgage does not fall within the statute — evidence — admissibility of parol evidence to show a waiver of the condition of an agreement which was, but need not have been, reduced to writing.

    This action, brought to enforce a guaranty given by the defendant upon the assignment of a bond and mortgage owned by him to the plaintiff’s assignor, was defended upon the ground that the plaintiff had not been reasonably diligent in his efforts to collect the amount secured thereby. Upon the trial the plaintiff was allowed, against the defendant’s objection and exception, to introduce parol evidence to show that the defendant consented to the delay and waived the performance of this implied condition of the guaranty.

      Eeld, that the claim of the defendant that the guaranty was a promise to answer for the debt of another, and was necessarily put in writing to satisfy the statute of frauds, and that, consequently, parol evidence of such consent and waiver was inadmissible, was not well founded.

      Eeld, further, that as it was admitted by the pleadings that the guaranty was executed by the defendant upon a sale and transfer by hi'm of the bond and mortgage for a valuable consideration paid to him by the purchaser, his guaranty was not a collateral but an original undertaking, which was not required by the statute to be in writing; and that the case fell within the rule respecting the admission of parol proof to show an extension of the time of performance, or a waiver of one or more of the conditions of an agreement, which by the voluntary acts of the parties, but not by the requirements of a statute, is put in writing. ■

      Appeal from a judgment on a verdict rendered a.t the Cayuga Circuit and from an order denying a motion for a new trial made on a case at the Monroe Special Term and entered in Cayuga county.

      Jamies R. Cox, for the appellant.

      H. V. Howland, for the respondent.
   Smith, P. J.:

The defendant, who was the owner of a bond and a mortgage collateral thereto, executed by Lewis Paddock, sold and transferred them to Cordial S. Jennings, in consideration of the sum of $1,700, paid by him to the defendant therefor, and by an instrument in writing defendant guaranteed their collection. Jennings transferred the bond and mortgage and the defendant’s guaranty to the plaintiff, and he, having foreclosed the mortgage and obtained a judgment for a deficiency, upon which an execution has been issued and returned unsatisfied, has brought this suit upon the guaranty. The suit is defended on the ground that the plaintiff has not been reasonably diligent in his efforts to collect. There appears to have been a delay of about two and a half years, after the maturity of the bond and mortgage, before the foreclosure was instituted. At the trial the plaintiff introduced parol evidence, for the purpose of showing that the defendant consented to the delay and waived performance of the condition of the guaranty, which the law implies, that the assignee of the bond and mortgage should proceed with reasonable diligence to collect them.

It is contended by the counsel for the appellant that, as the guaranty was a promise to answer for the debt of another, it was necessarily put in writing to satisfy the requirement of the statute of frauds, and parol evidence of such consent and waiver is inadmissible. This case was before us on a former appeal, and it was then held that the reception of parol proof, tending to show such consent and waiver subsequent to the making of the guaranty, was not error. (MS. opinion of Bradley, J., Jan. Term, 1885.) We adhere to that ruling.

But it was not necessary to the validity of the defendant’s guaranty that it should have been in writing. The complaint alleges, and the answer admits, by not denying, that the guaranty was executed by the defendant, upon a sale and transfer by him of the bond and mortgage, for a valuable consideration paid to him by the purchaser. It was, therefore, not a collateral but an original undertaking; not a promise to answer for the debt of another, but an engagement in which the promisor was the principal. Such an undertaking is not within the statute. The ease is analogous to that of Milk v. Rich, decided in the old Fourth Department (15 Hun, 178) and affirmed in the Court of Appeals (80 N. Y., 269). Several other cases to the same effect are cited by Earl, J., in Milk v. Rich (p. 271). The agreement of the defendant being one which was not required by statute to be in writing, the case falls within the general rule respecting the admission of parol proof to show an extension of the time of performance, or a waiver of one or more of the conditions, of an agreement which, b.y the voluntary act of the parties, but not by the requirement of statute, is put in writing. That parol proof is admissible for such purpose has long been the law in this state. (Fleming v. Gilbert, 3 Johns., 528; The Mayor v. Butler, 1 Barb., 325; Esmond v. Van Benschoten, 12 id., 366; Stone v. Sprague, 20 id., 509.) The evidence was sufficient, we think, to authorize the jury to find that the defendant consented to the delay.

The judgment and order should be affirmed.

BaReek, Haight and Bradley, JJ., concurred.

Judgment and order affirmed.


text:
    JOHN WHATLING, Respondent, v. WILLIAM NASH, Appellant.

      Pleading — smm'dl causes of action for separate entries upon real estate may he joined.
    The complaint in this action set forth two causes of action, one for a wrongful entry upon the plaintiff's lands under water, about April or May, 1881, and the wrongfully taking and carrying away of fish therefrom, the other for a like entry on plaintiff’s land in the year Í882, and catching and killing muskrats thereon.

      Held, that as both causes of action were for injuries to real estate they might be properly united in one complaint.
    That the allegations of injuries to personal property were not statements of separate causes of action, hut mere averments in aggravation of the wrongful entry.

      Appeal from a judgment of the Monroe Special Term overruling a demurrer interposed to the complaint in this action.

      D. L. Covill, for the appellants.
    Ti7". B. Crittenden, for the respondents.
   Smith, P. J.:

The grounds assigned for the demurrer are, that several causes of action are improperly united, and that the complaint does not state facts sufficient to constitute a cause of action. The latter ground is not argued by the appellant’s counsel in the brief submitted to us, and it is quite clear that there is no foundation for it in the complaint.

As to the first ground, it is true that the complaint sets forth two distinct causes of action, but they are such as may properly be joined in one complaint, as they are both for alleged injuries to real property. One is for a wrongful entry upon plaintiff’s land under water, about April or May, 1881, and wrongfully taking and carrying away fish therefrom ; the other, for a like entry on plaintiff’s land in the year 1882, and catching and killing muskrats thereon. The allegations of injuries to personal property are not, as the appellant’s counsel seems to suppose, statements of separate causes of action, but are mere averments in aggravation of the wrongful entry. (Van Leuven v. Lyke, 1 Comst., 515; Howe v. Willson, 1 Den., 181; Dunckle v. Kocker, 11 Barb., 387; Clark v. Van Vrancken, 20 id., 278 ; Gilbert v. Pritchard, 41 Hun, 46.)

The question whether the two causes of action for trespass guare clausum, should be stated in separate counts and separately numbered is not before us.

The judgment should be affirmed, with costs, with leave to the defendant to withdraw the demurrer and answer the complaint, within twenty days, etc., on payment of the costs of the demurrer and of this appeal.

BarKee, Haight and Bradley, JJ., concurred.

So ordered.