author: Learned, P. J.

text:
    Billings G. Martin, Resp’t, v. The New York, Ontario & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Railroad—Negligence—Fire caused by sparks prom engine.
    Sparks from one of defendant’s engines set fire to brush and old ties piled along its track, A strong wind carried the fire through adjoining lands for a mile, across a river ninety-seven feet wide, over which the trees hung, and 3400 feet further to plaintiff’s timber lands. Held, that the injury to plaintiff’s land was the natural and direct effect of the first firing, and that defendant was liable therefor.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying a new trial.

      George H. Carpenter, for app’lt; W. F. O'Neil, for resp’t.
   Learned, P. J.

This is an appeal by the defendant from a judgment on verdict and from an order denying a new trial. The action was brought to recover damages caused to plaintiff’s wood land about the 22d of May, by a fire which is alleged to have originated through defendant’s negligence. The fire started on the east side of defendant’s track in old brush and old ties which were along the track. The brush had been cut the fall previous. The ties had been taken out of defendant’s road. The alleged negligence was in leaving this dry and combustible material along the side of defendant’s track, where it might catch fire from the escape of sparks or burning cinders. The fact of the fire is not disputed. Nor is it disputed that it started as above stated. The defendant claims that the injury done to plaintiff is too remote from the original kindling of the fire, however negligent that was, to permit a recovery.-

The fire started at a point between the Neversink Tunnel and the Fallsburgh Station. From that point to the Neversink River is about one mile. The river is about ninety-seven feet wide. It is described as having a high bank on the west side with large timber. In some places, a witness says, the river was almost closed in and trees leaned over. The east bank was a bark “ slashing ” all the way. That is combustible and easily ignited. The plaintiff's land was about 2,400 feet beyond the river.

There had been a drouth for many days previous. The wind on the day of the fire was blowing strongly from the southwest to the northeast, which was in the direction of plaintiff’s land from the place where the fire started. The fire, starting from defendant’s road, ran through lands of Carley and of O’Neill to the river. There it crossed the river, evidently conveyed by the brush and dry timber on the banks and by the trees reaching over the river, and then continuing on it burned the plaintiff’s woodland. " One witness says that when it reached the river “ it could not but help but go; the wind was driving it over the hill as fast as a man could run.”

It cannot be said that plaintiff’s damages are speculative. They are actual and are the result, direct or remote, of defendant’s negligence.

If the plaintiff had been an owner adjacent to the railroad and the fire starting on the railroad had caught one of plaintiff's trees and had burned it, there could be no doubt of defendant’s liability.

Suppose that from that tree another on plaintiff’s land and still another had caught, and had been destroyed, would it be said that the damages for all but the first tree were too remote? Clearly not. Webb v. R., W. & O. R. R., 49 N. Y., 431. One might as well say, that, if one side of plaintiff’s house adjacent to defendant’s land had caught fire, and the fire had' extended through to the other side of the house, plaintiff’s damages must be confined to the value of the side which first caught fire.

It seems then plain that if the plaintiff’s woodland had been adjacent to the defendant’s track and the fire starting on defendant’s track had extended over plaintiff’s land, defendant would have been liable for all the damage caused thereby, and not solely for the value of the first tree or trees which ignited. A contrary rule would plainly be absurd.

Mow let us suppose, a very possible supposition, that the plaintiff had owned the land of Carley and of O’Meill and all the land between the railroad and that land which he does in fact own. In that case could it be said that he could not recover for the damage done to the whole of the land owned by him ? But what difference, as to defendant’s liability, whether the plaintiff owned all the land from the railroad track to and including that now in question, or whether the intermediate land belonged to some other person ? The damages are more no remote in the one case than in the other. The damages are just as immediate a result of the defendant’s negligence, whether the land over which they extend belongs to one person or in severalty to two.

The question of remoteness cannot depend on the title to the land. To hold otherwise would be absurd. A fire in such cases travels along from tree to tree, from brush to brush, from grass in one place to grass adjoining. The line which divides the ownership of the land neither stops the fire or carries it forward. So that the ownership is utterly immaterial when we are considering whether a certain result is the direct effect of the original fire. It might be material if there were a change of wind, or if some new cause should intervene. There was none here.

The case of Ryan v. N. Y. C. R. R., 35 N. Y., 210, is very gingerly treated in Pollett v. Long, 56 N. Y., at 206, and O'Neill v. N. Y., O. & W. R. R. Co., 115 N. Y., 585; 26 St. Rep., 269. And it is not necessary to comment upon it. It is not the case before us. Whatever may be the law as to a house in a village or city which takes fire from the burning of an adjacent house negligently set on fire by the owner, that is not the question here. It is well settled that where one negligently sets on fire grass or brush, or other combustible material, and the fire extends to the adjacent owner’s land, and destroys wood or grass, such owner may recover the damages. Webb v. Rome, W. & O. R. R. Co., ut supra, and many other cases. It is not necessary for us to justify the distinction made between such cases and that of city or village houses.

The question involved here was considered in the O'Neill case, ut supra. There it was urged that the plaintiff could not recover because the plaintiff’s lands did not lie next to the railroad, but were separated from it by the lands of another. In answer to the point that this objection, though not urged at the trial, could not have been remedied, and miglitj therefore, be heard on appeal, the court said that this fact alone was not decisive. Other circumstances would control, and the court could not say that testimony would not have been shown that the result was to have been anticipated from the moment fire dropped. If so, the destruction of plaintiff’s property was not remote. Thus we see that this is the test; or, as again expressed, the question is whether the result “ was the natural and direct effect of the first firing.” So the learned justice charged in this case. The jury must have found that the destruction of plaintiff’s property was the natural and direct effect of the fire which started in defendant’s land. Such finding is fully sustained. There was no change of the wind. It continued to blow in the same direction. The fire moved rapidly along to the plaintiff’s land. It does not appear that there was anything extraordinary in the circumstance that it passed from one side of the river to the other, when we consider the condition of the banks and the brush and slashing thereon. At any rate nothing but the wind and the condition of the banks carried the fire over. Hence the crossing was to have been anticipated.

The case of Read v. Nichols, 118 N. Y., 224; 28 St. Rep., 867, decided three months after the O'Neill case, makes no reference to it, and is not material here. It was the case of a fire in a village somewhat like the Ryan case. Sparks from a smokestack blown by a strong northeast wind had set fire to a house 280 feet distant ; then the wind died down and changed to a breeze from the south and plaintiff’s building was destroyed. There were no fire apparatus and no ladders long enough to enable persons to go on the roof of the first building. On all these circumstances the court held that the loss was not the direct effect of defendant’s negligence. That case, therefore, belongs to the same class as the Ryan case. It is unlike the other and more familiar cases in which a fire negligently kindled on a man’s ground has, under the operation of the existing natural conditions, extended itself to other land and destroyed woods, crops, grass and fences.

The O'Neill case is so close in point that it is unnecessary to cite cases from other states.

Judgment and order affirmed, with costs.

LANDON and Mayham, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Astheimer, Resp’t, v. Patrick J. O’Pray, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Civil damage act—Cause oe intoxication.
    In an action under the civil damage act, the proof showed that plaint-iS’s husband took two drinks of lager in defendant’s saloon the afternoon before his death ; that later he was seen coming out of another saloon intoxicated, and that he slept on the steps of the latter saloon; that early in the morning he was at defendants saloon and poured out a drink of whiskey, and two hours later was run over by a train. Held, that a refusal to non-suit was proper, and that the jury were justified in finding that the liquor drank at defendant’s saloon was in part the cause of the intoxication of the deceased.
    Appeal from judgment in favor of plaintiff, entered on a verdict for $500.
    Action under the civil damage act to recover for the death of plaintiff’s husband, alleged to have been caused by intoxication produced in whole or in part by liquor furnished by defendant.

      E. S. Wood, for app’lt; G. D. B. Hasbrouck, for resp’t.
   Learned, P. J.

The only question in this case is whether there was enough to go to the jury on the question whether the deceased drank intoxicating liquor at the defendant’s saloon, which produced in whole or in part the intoxication under which he came to his death. He was killed by a train of cars about half-past eight in the morning of May 26th. The afternoon previous, about five o’clock, he had been at defendant’s saloon. There he drank lager beer. There is some evidence that such lager beer was intoxicating. The next morning about half-past five or six o’clock he was also at defendant’s saloon. He poured out a drink from a bottle like a whiskey bottle behind the bar which Kenipf, the witness, declined to take, because, as he said, he didn’t wish to get drunk again. Eempf took a glass of beer and paid for the drink which deceased took, although he said that he did not see deceased drink it. The whole transaction is plain enough.

The deceased is shown to have been drunk before ten o’clock the evening previous as he came out of Ludwig’s saloon and to have been asleep on Ludwig’s stoop about five o’clock the morning of his death.

Ho question is raised on the appeal except that the evidence was not sufficient for the jury. Ho alleged errors as to the admission of evidence are pointed out in the defendant’s brief.

We have given a brief outline of the evidence, and it seems to us that it would have been improper to grant a non-suit. The jury were justified in their conclusion that the liquor drunk by the deceased at the defendants saloon was in part the cause of his intoxication. That such intoxication was the cause of his death is not disputed.

Judgment and order affirmed, with costs.

Landon, J., concurs; Mayham, J., not acting.


text:
    Frances McCaffrey, Resp’t, v. The Prest., etc., of The Delaware & Hudson Canal Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Negligence—Railroad crossing.
    Plaintiff, who was visiting her sister, was riding with her in her carriage on Sunday and was injured by a collision at a crossing of defendant’s road. There were gates at the crossing which were not operated on Sundays. The train which caused the injuries was composed of an engine backing a box car and between it and other cars. No whistle was blown, and if the bell -was rung it was not heard by passers by. Plaintiff looked as they approached the crossing and saw the gates up, placed her sister’s child on the latter’s lap and turned to speak to it, when they were struck by the train. Feld, that the question whether she was guilty of contributory negligence was properly submitted to the jury.
    2. Same—Negligence of driver.
    Negligence of the driver was not imputable to plaintiff, as she was not the owner of the carriage nor his master, but only an invited passenger.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Edwin Young, for app’lt; Warren, Patterson & Gambell (Charles E. Patterson of counsel), for resp’t.
   Learned, P. J.

This is an appeal by the defendant from a judgment on a verdict and from an order denying the motion for a new trial.

The plaintiff was an unmarried woman who had been for some months residing with her sister, Mrs. Bloss, at Troy. On Sunday, October 3,1886, she was taking a drive with her sister in a two seated carriage. The two seats faced in the same direction. She and her sister were on the back seat, the plaintiff on the right; the coachman on the front seat in the middle or a little to the right. The two seats were very close together. The sides of the carriage were all open. The coachman was Mr. Bloss’ driver. Mrs. Bloss had her son, a little boy, with her.

The party were returning home about 5 P. M. and were driving down North Second street, southward;'the street being now called Fifth avenue. Tracks of the Union B. B. Go. cross the street on grade. This company does not run cars but maintains the tracks and rails. It is owned by three companies, one of them the defendant, and its tracks are used by them.

In going eastward from River street the railroad tracks diverge; the tracks of the Fitchburg R. R. turning to the north and those of the Union R. R. towards the south; so that where these two systems of tracks cross North Second street there is a distance between them of about 80 feet; the Fitchburg being the more northerly.

At the crossing of the Union R. R. Co. there were gates maintained by that company which were closed for the passing of trains. Prior to this time the gates had not been operated on Sundays and they were not operated the day of the accident. There was no flagman at the crossing at that time. The driver knew that the gates were not operated on Sundays and that there was no flagman, and he was familiar with the crossing. There was a house called the Sutherland house on the east side of the street, next to and near, the railroad track. There was also a flagman’s shanty at the crossing.

As the plaintiff in the carriage approached the track, a train of cars of the defendant was moving westward towards the crossing. This train was made up as follows : In advance was a box car; then came the locomotive, which was backing, and then two • or three other cars. It was moving about four miles an hour. There was no man on the box car. No whistle was blown. Whether a bell was rung or not is disputed. The train made so little noise that one witness, who was walking in North Second street southward at the time, testifies that she had one foot upon the track before she was aware of the approaching train.

As the carriage approached the crossing, the plaintiff looked at the gates and saw they were up ; she heard no bell. Mrs. Bloss also looked and saw the gates were up and heard no bell. About this time the plaintiff, who had had the child in her lap, handed him to his mother, and turned to speak to him, and at that instant the carriage was struck by the train. She was thrown out, and very severely and permanently injured.

The driver was driving at a jog trot. He heard nothing. His horses seem to have shied westward, probably alarmed by the near approach of the train. And they turned so far westward that, according to the testimony of the driver, the train struck the carriage on the back.

It" does not seem to be urged in this case that there was not sufficient to go to the jury on the question of defendant’s negligence. There was a dispute whether the bell was rung; and even if it had been, still the cab of the locomotive, the tender arid the box car all intervened between the bell and the crossing. And it might be found by the jury that at such a crossing, and with such a train, the defendant had not discharged its whole duty when it simply rang the bell.

But the defendant urges in regard to the plaintiff two things. First, that she herself was negligent in failing to look out for the approaching train. Second, that the driver was negligent, and that his negligence is hers on the theoretical doctrine of imputation.

First, was the plaintiff herself negligent.

The duty of one who is not driving at the time a carriage approaches the crossing is well stated in Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y., 199 ; 19 St. Rep., 80. Such a person is bound to look and listen and is not to omit some reasonable and prudent effort to see that the crossing is safe. But what is such a person to do when he has looked ? As said in that case, he is not bound to jump; and is not bound to seize the reins. Either of these acts would be dangerous. “ The degree of care to be exercised varies with circumstances and emergencies.” If such a person is silent, it does not follow, as a matter of law, that he is negligent.

Applying these thoughts to this case, what can we say that the plaintiff ought to have done as a matter of law. Certainly not jump or seize the reins. The defendant says that she should have apprised the driver of the danger. But the driver was in a far better position to see any danger. Why should she tell him what he could see for himself ? He was not her servant and she had no right to control him. If the danger was as apparent to him as to her, what good to tell him of it? He had a much more unobstructed view than she had. She was behind him and the seats were very near together. He was in the middle or near the middle of the front seat, thus obstructing her view. The plaintiff saw the gates open. True, she had been over this same crossing on Sundays before. But it does not appear that she knew that the gates were never lowered on Sundays. Of course when she had crossed they were open. She had, on previous occasions, seen them raised and lowered. Palmer v. R. R., 112 N. Y., 234; 20 St. Rep., 904.

Now, all these facts were submitted to the jury to decide whether the plaintiff was negligent. The learned justice charged that if negligent she could not recover. And the jury found that she was not.

The circumstances differ widely from those in Brickell v. N. Y. C. & H. R. R. R. Co.. 120 N. Y., 293 ; 30 St. Rep., 932. There the plaintiff, a man, had hired a driver of a buggy wagon to carry him a short distance. The top of the buggy was raised and closed except the front. The plaintiff and the driver sat side by side. It was snowing. The plaintiff had the same knowledge of the road with the driver, and the same or a better opportunity of ■discovering danger. The facts showed plain negligence on plaintiff’s part, which he attempted to excuse on account of the wind and snow. As the driver was busy driving and as the snow tended to obscure the vision of both, it became specially the duty of the plaintiff to be on the lookout in approaching a crossing.

It has been often said that the question of contributory negligence is nearly always one for the jury. It is especially so in a case like this, where it is quite doubtful whether any watchfulness on plaintiff’s part would have enabled her to interfere with the driver without causing an evil fully as great as that which happened.

We think that this question was properly submitted to the jury.

. . . The next question is whether the driver was negligent, and if so, whether that negligence prevented a recovery. We will assume that there was sufficient evidence from which the jury might have found him negligent. Upon what principle can the negligence of one person prevent another from recovering for injuries caused by the negligence of a third ? Only when the relation of master and servant, or principal and agent, exists so that the act of the servant or agent may be called the act of the principal or master. Robinson v. N. Y. C. & H. R. R. R. Co., 66 N. Y., 11. We may also add (according to the law in some states) the case where a child is injured through the contributory negligence of a parent. But this plaintiff is not within either of these classes. There is nothing to connect her in the way of responsibility with the acts of the driver. If he had injured a person by his careless driving it would not have been her fault. She was only an invited passenger in the carriage. She was a visitor at the house of ¡Dr. Bloss. She was not the owner of the carriage or of the horses; and not the master of the driver. Dyer v. Erie R. R. Co., 71 N. Y., 228.

We see no error in the trial of the case, and are of opinion that the judgment and order should be affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    James Thompson et al., App’lts, v. Clarence R. B. Fuller et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Election of Remedies—Disaffirmance of sale.
    Plaintiffs made several sales of goods to defendants, and subsequently brought an action of replevin on the ground of alleged false representations inducing such sales, the complaint referring to all of them and the affidavit therein mentioning various classes of goods, some of which were included in the different sales. The only goods taken in the replevin proceeding were some included in the last two sales. Beld, that this constituted an election of remedies and was a disaffirmance of all the sales, and that an action to recover the purchase price could not thereafter be maintained.
    Appeal from judgment, entered after trial by the court without a jury, dismissing the complaint.

      Lansing & Cantwell (William P. Cantwell, of counsel), for app’lts; Frank S. Black, for resp’ts.
   Learned, P. J.

This is an action to recover for goods sold " and delivered by plaintiffs to defendants at sundry times from December 14, 1888, to January 29, 1889. There are eight items set forth in the complaint, and the total amount is alleged to be $2,129.30. The complaint also alleges fraudulent representations made by defendants to plaintiffs to induce plaintiffs to give credit, .and avers that sales were made in reliance thereon. And it alleges that a replevin suit was commenced against defendants February 4, 1889, “ to recover so many of the said goods, wares, and merchandise as remained in possession of said defendants.” And that goods to the amount of about $900 were taken and are held or have been sold and, “said sum is deducted from said sum of $2, 129.30 to make the amount of the judgment asked herein, viz : $1,229.30.”

The complaint then demands judgment for $1,229.30 with interest on the total amount of $2,129.30 from certain dates specified, being the dates when the sales became payable.

On the trial of the action the court found the sale of the goods •at the times and for the credits stated ; and further found the in- . stitution of the replevin suit, as stated, to recover so many of said goods as remained in defendant’s possession, and that goods to the value of $900 were taken and held, and that said $900 is deducted from said sum of $2,129.30 to make the amount of the judgment demanded.

Further, that a part of the bill for $287.70 sold January 17 was replevied and part of the same bill is sued for in this action.

Further, that plaintiffs when they instituted the replevin suit ■did not know what goods were in defendants’ possession, and intended to and did seize all the goods described in the complaint which they could find in defendant’s possession regardless of the times and dates when the goods were sold. Further, that the plaintiffs rescinded the contracts of sale of all of the goods and cannot recover. Among the special findings the learned judge found that none of the goods were taken in the replevin suit except such as were contained in the last two bills, viz., those of January 17 and January 29.

The affidavit of the plaintiffs on which the replevin suit was instituted describes, as in the possession of defendants and as the .property of plaintiffs, among other things, about 400 yards of linen. There was no sale of linen except in the first bill, December 14. It describes other goods, some of which may be in the second, fourth or sixth bills; as goods of the kind are found in those bills as well as in the seventh and eighth.

The complaint in the action of replevin alleges the aforesaid false representations as made between the 14th day of December, 1888, and the 29th day of January, 1889, and the sale under those inducements to defendants “ on said occasions,” and demands judgment for the recovery or for the value, if delivery cannot be had.

The question presented is whether or not the plaintiffs are barred from a recovery in this action by their proceeding in replevin dis-affirming the sales.

It is plain that this is an action on contract. What was the object of inserting the allegations of fraudulent representations we cannot tell. Possibly to obtain an order of arrest under § 549, sub. 4. But even if that were the object, the action is still, by the language of that subdivision, an action on contract. Under that subdivision there can be no recovery unless the plaintiff proves the fraud and no such proof was given in this case. This point was not presented on the argument, but we do not see how a recovery could be had on this complaint without proof of the alleged fraud.

The meaning of the principle on which defendants rely is obvious. The plaintiffs in their replevin suit say that the goods therein mentioned are their own; that they never really sold them to defendants, but were defrauded into parting with the possession. On the ground that such goods are their own, they claim to take such as they can find and to be compensated for such as they cannot find. Having taken this position, and having thereby enforced certain rights, they cannot now claim that they did validly sell these same goods to the defendants.

It cannot be doubted that where a party has his election to affirm or to disaffirm a contract, if he disaffirms it, he cannot afterwards assert a claim on the contract. Moller v. Tuska, 87 N. Y., 166; Kinney v. Kiernan, 49 id., 164. So far then as the replevin suit is a disaffirmance of the contract or contracts alleged in the present complaint, the plaintiffs cannot recover thereon. The plaintiffs having set up the fact of the replevin suit in their complaint, it was unnecessary for defendants to plead it. The plaintiffs had done this for them.

The plaintiffs aver that there were several contract's. There were eight bills purchased on six different days. And the plaintiffs claim that of these eight (or six) different contracts they dis-affirmed only the last two, inasmuch as they actually took in the replevin suit only goods sold on those last two days, viz., goods included in the seventh and eighth bills. The defendants, on the contrary, urge that whatever the plaintiffs succeeded in getting, the replevin papers show a disaffirmance of all the goods sold from December 14 to January 29 inclusive, which includes all those now sued for.

We assume for the present that the sales on each of those six days was a separate contract, and that one might be disaffirmed without disaffirming the others. Lee v. Kendall, 56 Hun, 610; 32 St. Rep., 165. The question then remains, what did the plaintiffs do ?

The complaint in the replevin suit avers false statements made by defendants to plaintiffs between December 14 and January 29, 1889, and fraudulent concealments “ on each and every of said occasions.” It avers sale by plaintiffs to defendants in reliance thereon “on said occasions.” It states the value and the price at $1,000. The affidavits describe certain amounts of five kinds of goods, viz., about 2,800 yards of Thompsonville No. 4; about 3,000 yards of Thompsonville No. 6 ; about 2,500 yards Queen; about 2,500 yards Boyal A A; about 400 yards of linen. As above stated, the last of these is found only in the bill first sold, December 14. The Boyal AA is found in the second, fourth and seventh bills; the Queen is found in the second, third, fourth and eighth bills. The Thompsonville No. 6 is found in the second, third, fourth, sixth and eighth bills, and the Thompsonville No. 4 in the second, fourth, fifth and eighth bills. The amounts in the affidavits are less than the aggregate of the amounts in the bills. The plaintiff Thompson testifies that he took all he could find of goods sold to the defendants.'

The amount of money demanded in the replevin action is not conclusive on this point. If an answer were put in, a greater amount could be recovered. Code, § 1207. Nor can it be material on this question how much of the property embraced within the affidavit and complaint in the replevin suit the plaintiffs succeeded in obtaining. The contract was disaffirmed at any rate. It would be disaffirmed if the plaintiffs had not succeeded in finding any of the property. And the plaintiffs could recover the value of ■such of the property as they could not find, and replevy. Code, § 1730.

It can hardly be doubted that the complaint and affidavit in the replevin suit would have authorized the plaintiffs to replevy -any of the goods sold by them to the defendants between December 14 and January 29, inclusive. Such was the view taken by this court' on the appeal in the attachment proceedings. Thompson v. Fuller, 28 St. Rep., 9. Nor do we see any reason why in that replevin suit the plaintiffs could not have recovered what they now seek, viz., the value of the goods which they could not find.

The complaint in that suit was broad enough to embrace all the ■goods sold by plaintiffs on all the occasions ” when the defendants were alleged to have made the false representations; that is, between December 14 and January 29. If the plaintiffs had not demanded a sufficient amount, they could have amended their complaint in this respect. The cause of action would not have been changed by such amendment. And it is to the alleged cause of action that we must look to' determine whether in that 'complaint the plaintiffs disaffirmed the contracts of sale. If the intent of plaintiffs had been to disaffirm only the last two sales, they could have alleged specifically that sales were made on the 17th and the 29th of January.

We may say in passing, that it is not necessary to decide, if fraudulent representations were made December 14, and on only •such representation sales were made on several subsequent days, whether each Of such sales was a separate contract so that it might be disaffirmed without affecting the other sales.

We think the judgment should be affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    Simeon G. Garrett, Resp’t, v. Clarissa M. Horton, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Deed—Deficiency in quantity.
    Defendant and her husband, since deceased, who were tenants by entirety of certain land, conveyed the same to plaintiff by a deed which described it as bounded by lands of others and as containing forty acres. They also represented it as containing that quantity of land. The deed and consideration were deposited with one C., who applied a large part of the money to obtain a release from a mortgage which covei ed this and other lands of the grantors. The piece contained only eighteen acres. Held, that as defendant was benefited by the transaction plaintiff was entitled to recover damages for the deficiency in the quantity of land called for by his deed.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      C. & C. H. Williams, for app’lt; E. Crummey, for resp’t
   Learned, P. J.

This is an appeal from a judgment against, defendant on the report of a referee.

The action is to recover damages for injury sustained by the-plaintiff on his purchase of land from the defendant’s husband, now deceased.

The land had been conveyed to defendant and her husband, and they were tenants by the entirety. Bertles v. Nunan, 92 N. Y., 152. It was called the Moses Yandervoort farm. He made a written contract in January, 1887,. to sell it to plaintiff for $1400. In the contract it is called the Moses Yandervoort farm ; the-names of adjoining owners are given and it is described as-40 acres, more or less. Ho other description is given. The price was $1,400 and a penal sum of $100 was named as fixed and settled damages to be paid by the failing party.

On the first of April defendant and her husband executed a deed to plaintiff of the farm. The deed was left in the hands of Mr. Orummey and the money was also left with him. The farm was incumbered. Soon afterwards Mr. Orummey paid $1,300 to the mortgagee and obtained a release. He also gave $50 to defendant’s husband to buy out the tenant and the other $50 was also paid to Horton. Mr. Orummey states that he was not then attorney for either party. He seems to have acted for both at that time. It was discovered that the old deed of the land called for only thirty acres. A subsequent survey has shown that there-were only eighteen and one-half. The plaintiff took possession of the land about April 12th and has been in possession ever since.. The deed and the release have ever since been in Mr. Crummey’spossession.

The defendant’s husband died August 20,1888, before the commencement of this action.

The plaintiff claims that defendant and her husband falsely represented that there were forty acres of land and that he relied on such representations.

The report of the referee found that plaintiff should recover of defendant $500 damages, with costs, and that thereupon plaintiff was entitled to the deed. The judgment, however, is simply for the damages and costs.

It appears by the testimony that there had been, at one time, and for some twenty years, a lot of ten acres connected with the Vandervoort farm, which lot is now part of the Horton place. In this way the Vandervoort place had been described as containing thirty acres and -had been for a long time so assessed.

There is evidence in the case from which the referee could find that both defendant and her husband stated to plaintiff before the sale that there were forty acres in the Vandervoort farm. There is evidence also that she knew of the negotiations between her husband and plaintiff and was present at them. They went together and showed plaintiff the place. And the deed signed by defendant and her husband describes the land as about forty acres, more or less.

It should further be noticed that defendant and her husband were owners of some land, apparently about 100 acres, other than this Vandervoort farm, and that the mortgage from which the Vandervoort farm was released, as above stated, by the payment of plaintiff’s $1,300, covered also these other 100 acres. Thus that mortgage on the 100 acres was reduced so much by this payment ; and the defendant, as survivor, has received the benefit of such reduction.

The proof in the case justifies a finding that the statement by defendant’s husband that the property contained forty acres was false and fraudulent Even with the ten acre lot which had once been connected with this farm, and which at the time belonged to the Horton place, the property would have, been a little less than thirty acres. The defendant and her husband lived adjoining. The plaintiff in another county. He was not familiar with the land. And though he went upon it, he might easily be deceived as to its actual size.

The plaintiff at the time of the contract had an estate in the land and it could not be validly sold in fee without her conveyance. She bad her right of survivorship, of which she could not be deprived against her will. And this same right extended to the other 100 acres. She was, therefore, interested in getting as much as possible from plaintiff. And she actually benefited by the transaction at the time it was made; and of course she was still more benefited after her husband’s death. She, therefore, benefited by the fraud; even if we pass over the false statements which she is alleged to have made. And that her husband acted for her in the transaction appears from the fact that she joined in executing the deed to plaintiff. By doing this she accepted his previous negotiations as made for herself as well as for him.

The defendant’s counsel urge that the release of the land is still held by Mr. Crummey, now plaintiff’s attorney, and that, therefore, the land is still burdened of record by the mortgage. But, as a fact, the Vandervoort farm is free from the encumbrance, and the encumbrance on the 100 acres is reduced by $1,300. It is immaterial to the rights of these parties whether or not these facts appear in the record in the clerk’s office.

We see no error in the admission of evidence or in the rule of damages applied by the referee.

Judgment affirmed, with costs.

Landon and Matham, JJ., concur.


text:
    Stella Stafford, App’lt, v. Walter Merrill, Assignee, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Assignment for creditors—Action to set aside—Pleading.
    An omission to charge a fraudulent intent is not fatal to a complaint in an action to set aside judgments, mortgages and an assignment for creditors as fraudulent and void as to creditors, if there is an allegation therein which shows, if true, that the assignment is fraudulent in law.
    Appeal from judgment dismissing the complaint on trial before the court, without a jury.

      Alexander Thain, for app’lt; Waldo & McLaughlin (Richard L. Hand, of counsel), for resp’ts.
   Learned, P. J.

This action was brought by a judgment creditor of Edgar H. Stafford, to set aside confessions of judgment, chattel mortgages and a general assignment, which was made to defendant Merrill, on the ground that these were part of a general scheme to illegally prefer creditors in contravention of the statute.

The complaint sets forth the recovery of judgment and issue and return of execution by plaintiffs and the making of a general assignment by the judgment debtor to Merrill, January 6, 1890, filed January 7, 1890.

It alleges that prior to the assignment, while the debtor was insolvent and in contemplation of the assignment, with the purpose of preferring the Fifth National Bank of Port Henry, and in violation of the statute limiting the amount of preference in a general assignment, said creditor made a chattel mortgage to the cashier of said bank to secure certain notes owing by the debtor to said bank.

It further alleges that the judgment debtor and said bank, conspiring to cheat his creditors and to mislead them into giving credit to him, agreed that he should execute certain chattel mortgages to said cashier which should not be recorded until such act became necessary for the protection of said bank, and that he did therefore execute three chattel mortgages in October, November and December, 1889, which were not recorded until January, 1890.

It further alleges that said debtor and said bank, conspiring to give him a fictitious credit, agreed that he should execute (and he did execute) three confessions of judgment in August, 1889, and October, 1888, which were not filed until January, 1890.

It further alleges that said debtor after making the general assignment gave a confession of judgment to said bank, January 6, 1890, which was not filed until January 7, 1890.

It alleges that the judgments are fraudulent "and fictitious in that the indebtedness to the bank was not over $20,000, and the judgments amounted to over $47,700.

The complaint further alleges a confession of judgment by the debtor to one Palmer in August, 1889, filed January 7, 1890, which it avers is part of the debt secured by judgments to the bank and was within the terms of the conspiracy aforesaid.

The complaint further alleges the execution of a chattel mortgage by the debtor to Blanche Le Huray January 6,1890, after the execution of the general assignment and filed January 7, 1890. And further that this was intended to secure accommodation notes endorsed by her for Stafford held by said bank and which were included in the indebtedness of Stafford to said bank of $20,000.

It further alleges that one Boss is preferred in the assignment for $50 and that Stafford was not indebted to him in any sum; and that this amount was to be paid him for managing the estate after the assignment.

There is a further allegation that said Stafford with intent to prefer plaintiff, executed a bond and mortgage to her of $3,000 on real estate and a chattel mortgage. And that plaintiff repudiates the same and surrenders the same as the court may direct.

It is not alleged that any of these acts were done with intent to hinder, delay or defraud creditors.

On the opening of the case it was conceded by plaintiff that none of the parties intended any fraud.

Thereupon the defendants on this concession and on the complaint objected to any evidence and moved to dismiss on the ground that no fraud was charged. The motion was granted and the plaintiff appeals.

The counsel for the plaintiff admits in his brief the necessity of allegations and proving fraud. But he contends that fraud is alleged by the charge of the intentional violation of a statute, of mortgages and judgments given and confessed as the result of a conspiracy to create fictitious debts.

The mode of disposing of a case adopted here is unsatisfactory. In a complaint embracing so many allegations it is difficult to say whether there may not be in some unobserved clause an allegation, on proof of which there might be a recovery. A demurrer (and this dismissal is similar), can only be sustained when admitting all the facts alleged it presents no cause of action whatever. Marie v. Garrison, 83 N. Y., 14; Sanders v. Soutter, 126 id., 196; 37 St. Rep., 1.

There is an allegation in the complaint that one Boss is preferred creditor in the assignment; that the assignor was not indebted to said Boss in any sum whatever; that the sum was named in the assignment under a secret understanding and agreement between the assignor and Boss and the bank that he was thus to be preferred in consideration of services to be rendered by Boss after the assignment, in the interest of the bank.

Hothing was said by defendant’s counsel on the argument as to this allegation. But we cannot properly overlook it in considering the question before us. We cannot treat it as the allegation of accidental preference of one not a creditor, because there is the allegation that the preference was made on the agreement and understanding that this was to be a payment for future services not rendered to the assignor, but in managing the assigned estate. Such services, when rendered, may very possibly be lawfully paid by the assignee. But the assignor could not lawfully make them a preferred debt in the assignment. It seems quite plain that an assignment knowingly made to secure an alleged debt which has no existence, and which may never exist, must be fraudulent as against creditors. Griffin v. Barney, 2 N. Y., at page 372. In that case it was held fraudulent to provide in an assignment for any other compensation to the assignees than that given by statute to trustees. That decision would be evaded if an assignment could provide a certain sum for services to be done by some person in caring for the estate, whatever such services might be worth and whether performed or not In Genesee River Bank v. Mead, 18 Hun, 303, cited by defendant, the court remarked: “ Besides, the facts alleged are not inconsistent with an honest intention.” That could hardly be said, of this allegation we are considering.

The defendant, however, urges that the failure to allege fraud makes the complaint so defective that no recovery could have been had, especially as the plaintiff’s counsel concedes that there was no intentional fraud. But there are cases where the necessary effect of the assignment is to hinder, delay or defraud and, therefore, the assignor is assumed to have intended what he directed the assignee to do. Wilson v. Robertson, 21 N. Y., 587; Nat. Bank of Granville v. Cohn, 42 Hun, 381; 6 St. Rep., 318 ; Edgell v. Hart, 9 N. Y., 213.

In the last case the court considered the provision of the Revised Statutes that fraudulent intent is a question of fact and held as matter of law that the mortgage, on its face, was fraudulent. It seems to us, therefore, that the omission to charge a fraudulent intent was not fatal to the complaint if there was an allegation therein which showed, if true, that the assignment was fraudulent in law.

We have not discussed what seems to be the principal part of the plaintiff’s complaint, viz., the attempt to give preferences beyond. the statutory limit. Very probably, if the trial had proceeded, that would have been found to be the sole ground of plaintiff’s action and the allegation which we have considered would have been in some way eliminated. But by the course pursued we are shut off from the consideration whether there could possibly have been given any proof under this complaint which would have entitled plaintiff to any relief. And we meet the allegations which we have considered and which appears to show a fraudulent assignment.

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

Landon and Mayham, JJ., concur.


text:
    George B. Gallup, Resp’t, v. August Belmont et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Libel—Pleading—Innuendo.
    The meaning of words cannot be extended by innuendo beyond their natural import, aided by reference to the extrinsic facts with which they may be connected.
    2. Same.
    The publications in question consisted of a report of the American Kennel Club, ordering the suspension of a subordinate club, of which plaintiff was an officer, for non-payment of prizes awarded; stating that no notice of such payment had been received for thirty days at the office, and directing notice to be sent to the officers of such club that they were disqualified until the awards were paid, and also giving a list of those disqualified, including plaintiff, explaining that no person under sentence of disqualification could exhibit or take a prize or act as agent for any person at any show held by a member of the American Kennel Club. Plaintiff was the librarian of an association and held several private trusts. Held, that as the publications contained no charge of dishonesty or fraud, they were not libelous.
    Appeal from, interlocutory judgment overruling demurrer to the complaint.

      Lowery, Stone & Auerbach (Grosvenor P. Lowery, of counsel), for app’lts; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Learned, P. J.

The complaint charges that the defendants, excepting Rogers, were the members of the American Kennel Club, and publishers of the American Kennel Gazette, and that Rogers was the printer of that newspaper; that the plaintiff was a member of the Albany Kennel Club, and that said club, in March, 1889, held a bench show, and awarded prizes; that in February, 1890, the defendants published concerning plaintiff a certain libel, which is set forth at length.

A second count, after stating the same preliminary matter, alleges the publication in the same paper subsequently of a certain other libel, also set forth at length.

The defendants demurred to the complaint as not stating facts sufficient to constitute a cause of action. The demurrer was overruled at special term, and the defendants appeal.

The meaning of the words cannot be extended by innuendo beyond their natural import, aided by reference to the extrinsic facts with which they may be connected. Woodruff v. Bradstreet Co., 116 N. Y., 217; 26 St. Rep., 523. The allegations in the complaint preliminary to the alleged libel are useful to explain its meaning. But the question whether the publication is libelous must be judged by the publication itself.

This is not a case where the publication was made in regard to the plaintiff in connection with his business. The plaintiff alleges that he is a librarian of the Young Men’s Association for Mutual Improvement in Albany, and that he holds many private trusts. But this publication had no connection with his office as librarian. Even neglect to pay prizes awarded at a dog show would not affect one’s competency to perform the duties of that office. Nor do these private trusts constitute any trade or occupation as to which these publications were made. Moore v. Francis, 121 N. Y., 199 ; 30 St. Rep., 467; Sanderson v. Caldwell, 45 N. Y., 405.

The question must be then whether these publications held the plaintiff up to scorn or ridicule, or disgraced or degraded him in the eyes of men, or tended to do this. Bergmann v. Jones, 94 N. Y., 51; Moffatt v. Cauldwell, 3 Hun, 26; Cooper v. Greeley, 1 Denio, 347. The words are not ambiguous, nor do they permit of more than one interpretation. Lewis v. Chapman, 16 N. Y., 369 ; Hunt v. Bennett, 19 id., 173. The plaintiff claims that the words published tend to degrade him. The defendants say that they have no such tendency.

The first publication purports, from its language, to be the report of some committee of the American Kennel Club and the action of the executive committee thereon. It states that the advisory committee in September, 1889, ordered the suspension of the Albany Kennel Club for non-payment of its prizes awarded in March, 1889 ; that thirty days had expired and no official notice of such payment had reached the office; that President Belmont had suspended all officers of said club under rule 28, and that notice to that effect had been mailed to certain officers of that club, naming them, among them the plaintiff. Thereupon the publication states that the secretary was instructed by the executive committee to notify these persons, naming them (including the plaintiff) “ that they are disqualified until the awards given by that club are paid in full.”

Now it is to be observed that there is no statement of any wrongful act on the part of the persons thus disqualified. It is only stated that a club of which they were officers has neglected to pay the prizes which had been awarded. And that no official information had been subsequently received of such payment. Neither of these persons is described as treasurer, and neither of them is stated to have neglected any duty. It would seem that if any kennel club does not pay its prizes then the American Kennel Club disqualifies the officers. Or rather, to state the matter more carefully, if the American Kennel Club is not officially notified of such payment, then it votes such disqualification. So that the only charge of neglect against these officers is a failure to notify the American Kennel Club officially of the payment of these prizes.

The effect of such disqualification is not set forth. What these officers are disqualified from doing is not told to the public in the alleged libel. The question here is not as to the actual effect of the vote of the committee, but relates to the effect on the public of the publication, as to the character of the plaintiff. There is nothing disgraceful in being disqualified. Judges of the court of appeals and justices of the supreme court are disqualified from acting at the end of the year in which they become seventy years old. It would not be libelous to publish the fact that one of these officers had become disqualified to serve.

The plaintiff, in his argument, says that the words charge him with a failure to discharge a pecuniary obligation. But this is not so. There is nothing which charges that these prizes were pecuniary obligations of the persons named, viz., the plaintiff, W. C. Hudson, Amasa J. Parker and ¡Robert C. Pruyn. If these prizes were pecuniary obligations of these persons there would have been no hesitation as to their payment To publish that a j udgment has been recovered against the plaintiff was held not to be libelous in Woodruff v. Bradstreet, ut supra. Still less, then, would it be libelous on this plaintiff to say that some association had not paid a debt, of which association this plaintiff was an officer. It is not charged that the non-payment was the plaintiff’s fault. We may infer that, in the organization of the American Kennel Club, it is the rule that its privileges shall not be enjoyed by officers of any other club which has not paid its prizes. But this rule and action under it impute no fraud or dishonesty to these officers. Many causes for which these officers are not responsible might prevent the club from paying. And if neither the rule nor the action of the American Kennel Club makes a charge of dishonesty, it cannot be that a publication of such action gives publicity to any such charge.

Nor can such a charge be inferred from the mere statement that for such non-payment by the association the plaintiff was disqualified. Even if it be assumed that this word meant disqualified from some privilege of the American Kennel Club, there is nothing disgraceful in that statement. Unless it were known what the qualifications were, for the enjoyment of such privilege, it would not be disgraceful not to possess them.

It would seem that prior to December 19, 1889, the officers of this Albany Kennel Club had possessed these privileges, whatever they may have been. They are stated to have lost them because their club (not they themselves) had not paid its awarded prizes. If it had been published that this non-payment was owing to dishonesty or negligence of these officers, another question would have arisen. But nothing of that kind appears. Nor does the publication mean, as alleged in the complaint, that the plaintiff cheated and defrauded the exhibitors at the bench show. On the contrary, there is nothing in the publication which implies that the officers owed these prizes, or that the non-payment was caused by them.

The second count charges the publication of a list of persons, headed “ Disqualified,” and containing plaintiff’s name, followed by an explanation that no person under sentence of disqualification can exhibit, or take a prize, or act as agent for any person at any show held by a member of the American Kennel Club. In this, as in the former count, we must take the words for what they fairly mean. They are not equivocal. The meaning of “ disqualified ” is here explained. It is that for some reason the American Kennel Club refuses to these persons the privilege of exhibiting, etc., at any show held by one of its members.

The plaintiff avers that this publication set forth in the second count was intended to have it believed that plaintiff was dishonest, and that the Albany Kennel Club did not pay its awards, and that the members thereof defrauded the exhibitor’s. ¡Nothing is stated in that publication as to the Albany Kennel Club or its exhibition. The article merely gives a list of the disqualified persons and explains what such persons may not do. It does not state the cause of disqualification. So that if there is any injurious effect in the publication it is in that statement that these persons may not do certain things. Can it then tend to disgrace a person to publish that he is not allowed to exhibit or take a prize at a bench show held by the member of the American Kennel Club ? Is the exhibition at a bench show of this club such a very moral act, that to be excluded is disgraceful or disreputable ? We think not. If it were a matter of public knowledge that to exhibit or to take a prize at such a show required the possession of high intellectual, moral or social qualities, then the publication of a statement that one was disqualified might be considered a statement that he did not possess these qualities, and therefore one “ calculated to injure his character.”

The article is, undoubtedly, as plaintiff claims, a statement that he, not the Albany Kennel Club, is deprived of a privilege of exhibiting. But this is no injurious statement. Construing the language acccording to the principle laid down in Cooper v. Greeley, it imputes no wrong doing to the plaintiff. And there is not the ambiguity in the language which leaves it open for the jury to give a construction to it.

We are of the opinion that the interlocutory judgment overruling the demurrer should be reversed, and that defendants should have judgment on the demurrer, with costs.

Landon, J., concurs; Mayham, J., not acting. .


author: O'Brien, J.

text:
    Anthony J. Drexel et al., Pl’ffs, v. Eliza A. Pease, Ex’rx, et al., Def’ts. George St. Arnaut, Resp’t, v. The Mechanics’ Nat. B’k et al., App’lts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Joint account—Lien—Priority.
    This action was brought by the plaintiffs to establish their lien as hankers to a priority of payment out of property sent by defendant St. Arnaut from France to Joseph M. Pease, deceased, of New York, for money furnished Pease, which he advanced to St. Arnaut, and a judgment against the receiver of Pease gave plaintiffs their money and a reference was had between St. Arnaut and attaching banks as to the balance, which the referee awarded to St.Arnaut. Held, no error; that the letters of St. Arnaut to Pease did not import a contract of sale, but a joint enterprise between them and a packer tor the shipment and sale of sardines, and after payment of advances and expenses a division of the profits between them.
    2. Same.
    The fact that in St. Araaut’s answer Pease was characterized as his selling agent in New York was disregarded by the courts below. Held, that this was not such an error as would warrant this court in interfering with the judgment.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment recovered at special term.

      Horace E Deming, for app’lts; O. J. Wells, for resp’t.

       Affirming 37 St. Rep., 166.

   O'Brien, J.

The controversy which resulted in this appeal grows out of a written contract made in March, 1883, between Joseph M. Pease, a merchant doing business at the time in the city of New York, and George St. Arnaut, a merchant doing business in Paris, France. Before making any further reference to the terms of the contract it is necessary to get a clear idea of the proceedings .through which St. Arnaut and the parties representing Pease are before this court. In August, 1884, Pease failed and made an assignment for the benefit of his creditors. Immediately after this failure, the defendant, the Mechanics’ National Bank, and the National City Bank of New York, as creditors, instituted suits and proceedings against him, in which attachments were issued and levied upon goods in his possession, and upon a large number of open accounts due to him. In these suits the goods were reduced by the banks to possession and many of the accounts collected.

It seems that these proceedings, and whatever lien the banks obtained upon the property, preceded the assignment. The goods seized, it is claimed, were shipped to Pease by St. Arnaut under the contract and the accounts collected represented goods shipped to and sold by Pease under the same arrangement. St. Arnaut claimed that the title to these goods, and their proceeds, remained in him and did not, under the agreement, pass to Pease or his creditors. The plaintiffs, Drexel, Morgan & Go., by means of a letter of credit, furnished to Pease the funds which he advanced to St. Arnaut under the agreement, and they claimed a banker’s lien upon the goods and their proceeds by virtue of the advances to, afid an arrangement with, Pease, which has been found.

The plaintiffs brought this action to enforce the lien and made the attaching banks, the assignee of Pease and St Arnaut parties defendants, who all answered. In the meantime, with the consent of the parties, a receiver was appointed in the action of the fund representing the collected accounts and the proceeds of the goods which had been attached and subsequently sold.

The case having been brought to trial at special term, an interlocutory judgment was entered directing the receiver to pay to the plaintiffs the sum of $4,264, with interest thereon and costs, out of the fund, in satisfaction of their lien, which was adjudged. This disposed of the plaintiffs’ interest in the controversy and none of the defendants now seem to raise any question as to this part- of the judgment. The court, however, did not then pass upon the conflicting claims to the rest of the fund by St. Arnaut on the one hand and the banks, as attaching creditors, on the other, but a provision was inserted in the judgment providing for a reference to ascertain the particular portion of the goods, or the proceeds in the receiver’s bands, received by Pease from St. Arnaut under the agreement, and also whether the judgments ertained by the banks, against Pease, were for an individual debt due from him or for advances made to him on account of the business, under the agreement through which the goods came from St. Arnaut, and that all other questions between the defendants be reserved until the coming in of the • report upon the reference.

Prom that part of the judgment directing a reference the bank» and the assignee appealed to the general term, but the appeal was dismissed. The reference proceeded and the referee reported that all the goods and their proceeds that came to the hands of the-receiver were received by Pease from St. Arnaut under the agreement and all the accounts collected were for the purchase of like goods that Pease had received and sold under the same conditions.. That the indebtedness of Pease to the banks was on his individual account and that the lien of the banks did not attach till St. Arnaut was paid. That there was due to him September 16,1884r for goods delivered under the agreement, after deducting all advances, . expenses or profits, the sum of $23,630.41. That the receiver had realized from the goods and accounts that came to his-hands the sum of $24,924.75. That he had paid the plaintiffs, on account of their banker’s lien, pursuant to the judgment of the court, $6,053 and in other expenses $532.60 leaving in his hands a balance of $18,338.49 subject to his commissions and certain disbursements. The case came on for trial again at a special term held by another judge. The trial was had, mainly if not entirely, upon the report of the referee, the proofs reported by him to the court, and exceptions to his findings. The court'overruled the exceptions and substantially adopted the finding of the referee and adjudged that St. Arnaut was entitled to the whole fund in the hands of. the receiver’. Upon this decision final judgment was entered, and upon appeal was affirmed by the general term. The banks and the assignee appeal to this court from the judgment of affirmance and they also bring up for review the order of the general term dismissing the appeal from that part of the interlocutory judgment directing a reference of the special questions above stated. We are asked to reverse the judgment and order upon substantially three grounds;

1. That the contract between St. Arnaut and Pease constituted a sale to the latter of the goods and that, consequently, the fund in the receiver’s hands is bound by the lien of the attachments.

2. That the finding of the court, that the fund was the proceeds of the goods received by Pease from St. Arnaut under the contract "is without any competent evidence to support it.

3. That the court had no power to refer the questions before stated and that the general term should have reversed that part of the interlocutory judgment instead of dismissing the appeal.

The correspondence between St. Arnaut and Pease resulted, as-the court below found, in the following contract, to which reference has been made in the foregoing statement:

“Your favor of 5 th inst. is duly at hand. I had an interview with the packer (Dumagnou) and owner of the Billett Brand, who is willing to give us the monopoly of these sardines, the agreement to be as follows:

“ We to advance eighty per cent of cost of each invoice as they are forwarded from the factories, this advance to be halved by you and I.

“ As a basis we take the amounts of 1,000 of American Js, and 4,000 cases of 100 low Js, to be handled during the season, we to have the liberty of stopping shipments and annulling the agreement at any time during the season, if we find it unprofitable or have any other good reason.

“ Interest to run on the account of six per cent per annum. No commission to be charged by us nor profit to be added by him. You to charge brokerage only when actually paid by him.

“ Goods to be sold from wharf, unless some very good reason should exist for doing otherwise.

“ Any loss occasioned by failure of your buyers to be supported in thirds, one-third each by you, the owner of the brand and myself.

“ The total of net proceeds of all accounts sale, compared with the total cost, shall determine the profit of the season, which shall be divided in thirds in same manner as stated in previous paragraph. If this should show a loss, this loss is borne by the packer.

“ There are about 500 cases of tins cut to size of old American which will be sent on first, in order to get as many in as possible under the four cent duty.

“ In studying the foregoing you will see that we are entirely in your hands as to the result, and without my knowledge of your straightforwardness and business integrity through many years, I would never have suggested you to my friend here. I hope to have your early answer, and I trust that this will lead to something in a larger business way between us.”

This language of St Arnaut does not import a contract of sale, but, as the court below held, a joint enterprise between Pease, St Arnaut and the packer Dumagnou, for the shipment and sale of sardines, and after payment of advances and expenses the division of the profits between them in equal parts. The interest of Dumagnou was assigned to St. Arnaut, who, as the representative of the joint ownership and enterprise, had in equity a title to the goods or their proceeds superior to that of the individual creditors of Pease. But the learned counsel for the banks insists that this.was not the claim that St. Arnaut set up in his answer, and perhaps upon a strict construction of the pleadings this may be true. The complaint, which was the pleading of Drexel, Morgan & Co., stated that St. Arnaut claimed an interest in the goods. The banks and the assignee admitted this allegation and St. Arnaut set forth in his answer the facts of the transaction according to what was, perhaps, another view of their legal effect, in which Pease was characterized as his selling agent in New York. The trial court disregarded the variance and the general term agreed with it We do not think that any error was committed in this respect that would warrant us in interfering with the judgment The superior equity of St Arnaut attached to the fund in the receiver’s hands. I. & T. N. Bank of N. Y. v. Peters, 123 N. Y., 272; 33 St. Rep., 182; Knatchbull v. Hallett, L. R., 13 Ch. D., 723; Van Alen v. Am. Nat. Bk., 52 N. Y., 4; Sadler’s Appeal, 87 Penn., 158.

At the close of the testimony before the referee, the attorneys for all the parties stipulated and consented that the referee “may refer ad libitum to the printed case upon appeal in this action to-ascertain any fact for his information.” The printed case here referred to was that upon appeal from that part of the interlocutory judgment directing the reference and contained eveiything in the present record except the proceedings before the referee and subsequent thereto. Much evidence was given before the referee with a-view of showing that the fund was derived from sales of goods that were shipped by St. Arnaut under the agreement, and many objections were made and exceptions taken to some parts of it. But the referee had no power to make a decision on any of these questions which this court can review, and the record does not show that any ruling was made upon these by the court that made the final decision in the case.

It was not asked to pass upon any exception to matters of evidence, or to strike out any improper answers given. The stipulation above referred to carried with it to the special term every fact and every paper that was before the referee. In this condition of the case we cannot hold that the finding made by the trial court, that the fund was derived from sales of goods sent by St. Arnaut to Pease under the agreement, was without evidence. On the contrary, we think that the record contains evidence sufficient to justify the finding. In regard to the order of reference, it does not appear that any question was raised at the trial before the special term in regard to any irregularity or want of power torn ake it when the report of the referee was before it for consideration. The appellants took the chances then of a favorable result for them upon the report which they now claim was unauthorized,, and without any objection, apparently, took the same chances of a favorable report from the referee. Moreover, this provision of the interlocutory judgment was not specifically excepted to. Under these circumstances it is reasonable to conclude that the trial proceeded without much regard to the question whether the reference was within the power of the court or not' But we think the court had power to direct the reference. By the last clause of § 1013 of the Code power is given in such a case as this to order a reference “to report the referee’s finding upon one or more specific questions of fact involved in the issue.” The other references provided by this section are to hear, try and determine. The last clause confers power upon the court to refer one or more specific questions of fact, not to determine, but to report upon, for the information of the court That is all that was done in this case. The special term was not bound by any finding or ruling of the referee. It could adopt the findings, or from the testimony make new ones. On the whole we are of opinion that no material error was committed in the disposition made of the case, and that, the judgment and order should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    In the Matter of the Petition of the President, etc., of the Delaware & Hudson Canal Co., to Vacate, etc.

      (Court of Appeals,

      Mled December 1,1891.)

    Municipal corporations — Assessments — Albany — Jurisdiction of COUNTY JUDGE.
    Under the new charter of Albany, chap. 298, Laws 1883, the jurisdiction, conferred upon the county judge to review and vacate assessments upon proceedings by petition was not intended by the legislature to apply to assessments previously made.
    Appeal from judgment of the supreme court, general term, third department, reversing the order and decrees of the Albany county judge in thirty-eight cases, vacating an assessment for paving, grading and draining a portion of South Pearl street, in the city of Albany.

      E. Countryman and E. J. Meegan, for app’lt; D. Cady Herrick,, for resp’t.

       Affirming 37 St. Rep., 839.

   O’Brien, J.

The petitioner and other property owners have challenged the validity of a local assessment for regulating and improving that part of South Pearl street between Gansevoort street and a point 340 feet south of McCarty avenue in the city of Albany. The county judge of the county of Albany, before whom this proceeding was instituted, vacated the assessment, and the general term has reversed his determination. By chapter 139 of the Laws of 1870, a portion of the town of Bethlehem was annexed to the city of Albany, and a turnpike country road became an extension of South Pearl street. By chapter 290 of the Laws of 1880, the city was authorized to issue its bonds to pay for the draining, forming and grading, paving and flagging this-part of the street, whenever, pursuant to existing laws, the authorities had provided for the expense by a local assessment, and the work had been completed and apportioned, and the proceedings confirmed. The bonds were payable in five years, and the payment of the assessment for the work was extended for a like period from the time of the confirmation.

On the 30th of August, 1880, the common council passed the ordinance providing for making the improvement. That body had before it at the time a petition signed by certain property owners on the line of the work, requesting that the improvement be made. Various proceedings were had by the city authorities touching the assessment and the contract for the performance of the work, and, at least, an attempt was made to comply with all the requisites of the statute in order to make a valid assessement, if indeed all these provisions were not absolutely followed. The-common council confirmed the assessment and apportionment. October 17, 1881. This was the situation when chapter 298 of the laws of-1883, entitled “ An act to provide for the government of the city of Albany, ” was passed. This act, which was substantially a new charter for the city, revised, re-arranged and consolidated existing laws, and introduced some new and important provisions in regard to street assessments, and the methods and procedure for a review and correction of the same. These provisions are found in the three first sections of title eleven. Section one provides that “No assessment that may .hereafter be levied shall be void, or shall be vacated by any court because of a failure on the part of the contractor to comply in the execution of the work with all the requirements of law, or the contract in respect thereto.”

Then follow in the same section provisions authorising any taxpayer or property owner liable to be assessed for the work to institute proceedings against the contractor in the courts to enforce the performance of the contract, to prevent fraud, and to reduce the sum to be paid to such contractor in certain cases. The section concludes with these words: “And all assessments heretofore levied in the city of Albany, proceedings to vacate, review or set aside which were not pending January 15, 1883, are hereby validated and confirmed.” It is conceded that no proceedings were pending at the above date to vacate, review or set aside this assessment. The second and third sections are as follows:

“ Sec. 2. If in the proceedings relative to any assessment or assessments for local improvements in the city of Albany, or in the proceedings to collect the same, any fraud or defect in the work or substantial error shall be alleged to exist or have been committed, the party aggrieved thereby may apply to have the assessment vacated or reduced, or both, to a judge of the supreme icourt, at special tefrm, or at chambers, or to the county judge, who .shall thereupon, upon due notice to the counsel of the corporation of said city, and to the contractor and his sureties, or any other person, if they, or either of them, be proper parties, proceed forthwith to hear the proofs and allegations of -the parties.

“Sec. 3. If, after such hearing, it shall be finally decided that the alleged fraud or defect in the work or substantial error exists or has been committed, the said assessment shall be vacated, except •as hereinbefore otherwise provided, and the lien created thereby, or by any subsequent proceeding, shall, except as hereinbefore otherwise provided, cease; and hereafter no suit or action in the nature, of a bill in equity or otherwise, shall be commenced for the vacation of any assessment in said city, or to remove a cloud upon title arising from any assessment hereafter made. In case the assessment shall not be vacated, the assessment may be reduced or judgment may be given as hereinbefore provided. Owners of property shall hereafter, in proceedings to reduce or vacate or stay payment of assessments, be confined to the form of proceeding in this title mentioned. The court may, in a proper, case, in proceedings under this title, direct that any issue or issues of fact be tried before a jury.”

In the month of October, 1886, and just before the expiration of the five years to which the payment of the assessments had been extended, and when the bonds were about to become due, the petition for the vacation of the assessment in this case was filed with the county judge. It contains numerous allegations against the validity of the assessment as originally levied, based upon alleged errors, omissions and irregularities in the proceedings by the city authorities, and upon alleged frauds by the contractor in procuring and carrying out the contract for the performance of the work. Much of the argument contained in the very able and elaborate brief submitted by the learned counsel for the petitioner is devoted to showing that the assessment was invalid by reason of non-compliance with the statute, and that these defects, if they existed, are not cured by the last paragraph of § 1, title 11 of the charter of 1883, which declared the assessment valid and confirmed.

If this was the only question in the case, it might be necessary to discuss the point upon which it depends, namely, the power of the legislature under the constitution to validate burdens of this character. This question has often been examined and discussed before in this court, and as we are of the opinion that there is another question which is fatal to the petitioner in this proceeding, we do not think it necessary, nor indeed hardly proper, to pass upon the effect of such legislation in this particular case.

We think that the county judge had no jurisdiction to vacate the assessment nor to entertain the proceeding, and consequently that the general term properly reversed his determination. Whatever jurisdiction the county judge has to review local assessments like this is conferred solely by the second section of title eleven of the act of 1883. It is not claimed that he had any such jurisdiction prior to the passage of that act, and the question is whether such jurisdiction as is conferred by the second section applies to and embraces assessments made, completed and confirmed eighteen months prior to its enactment. The first and third sections in terms apply only to assessments “ hereafter made.” The scope of the second section, it is true, does not appear to be expressly limited by these words; but in view of the position that it occupies in the title, and its relation to and connection with the other sections, and the universal rule that statutes are to be construed as prospective, in the absence of some words manifesting an intent on the part of the legislature to give them a retroactive operation,, we cannot doubt that it was the intention of the legislature to apply this new jurisdiction to future assessments only. People v. O'Brien, 111 N. Y., 59; 19 St. Rep., 173; In re Van Kleeck, 121 N. Y., 701; 31 St. Rep., 896; Sanford v. Bennett, 24 N. Y., 20; Whitney v. Thomas, 23 id., 281-4.

But the three sections referred to contain, when read together, provisions which show very clearly that the jurisdiction conferred upon the county judge to review and vacate assessments upon proceedings by petition was not intended by the legislature to apply to assessments previously made. One of these provisions is the one which in express words validates and confirms “ all assessments heretofore levied in the city of Albany, proceedings to vacate,, review and set aside which were not pending January 15, 1883.” This assessment is plainly within this provision, and as the court below pertinently suggested, it would be quite unreasonable to impute to the legislature an intent to validate and confirm this assessment, and in the same statute make provision for vacating it by the county judge. The third section in terms prohibits suits in equity hereafter ” to vacate assessments or to remove a cloud upon title arising from any assessment “ hereafter made, ” and then adds this provision : “ Owners of property shall hereafter in proceedings to reduce or vacate or stay the payment of assessments be confined to the form of proceedings in this title mentioned.” Language .such as this naturally and necessarily leads to the conclusion that the law makers intended that .the new procedure by petition .should operate only upon future assessments.

We do not hold that the broad language of the statute validating and confirming all past assessments as to which no proceedings to vacate or review were pending January 15, 1883, operated, or ■could operate to put this assessment Beyond the reach of all judicial examination. The old remedy by suit in equity was not in terms abolished nor prohibited as to assessments in the condition that this was. All we hold is that the county judge had no jurisdiction to vacate or review it upon petition.

The order of the general term should therefore be affirmed, with costs.

All concur.


author: Earl, J.

text:
    The People ex rel. The Oak Hill Cemetery Ass’n, App’lt, v. Luther A. Pratt et al., Ass'rs, Resp’ts.

      (Court of Appeals,

      Filed December 1, 1891.)

    1. Taxes—Cemeteries.
    Relator was incorporated under Laws of 1847, chapter 133, and was authorized to hold lands exclusively for cemetery purposes. The common council passed an ordinance amending a previous ordinance prohibiting the burial of the dead in the city except in certain cemeteries named so as to include the relator, but before any action was taken to prepare the lands for such purposes, the last ordinance was revoked, and the original one re-enacted. Held, that relator’s land in the city under the act of 1847, § 10, was exempt from taxation, although, so long as the ordinance remains in force as at present framed, no burials could be made therein.
    Appeal from jiidgment of the supreme court, general term, ■fifth department, affirming judgment of special term, decreeing that the lands of relator were subject to assessment for general •city taxes.

      Martin W. Cooke, for app’lt; C. D. Kiehl and Geo. F. Danforth, for resp’ts.

       Reversing 38 St. Rep., 598.

   Earl, J.

The relator, the Oak Hill Cemetery Association, complains that its land, situated in the city of Rochester, was illegally assessed in the year 1890, and it has instituted this proceeding to procure the assessment to be stricken from the assessment roll as illegal and unauthorized. It was incorporated under the act, chapter 133, of the Laws of 1847, on the 16th day of March, 1889. At that time there was an ordinance of the city of Rochester, passed in 1887, prohibiting the burial of dead human bodies within the city limits, except in certain cemeteries specified. On the 19th day of March, 1889, that ordinance was amended so as to authorize the burial of the dead in the relator’s cemetery, and thereafter, and while that ordinance was in force, it took a conveyance of fifty-four and one-half acres of land situated within the city limits. On the 2d day of May, 1889, the ordinance was again amended so as to prohibit the burial of the dead in any cemetery within the city limits, except in certain cemeteries named, among which was not the relator’s, and thus thereafter, assuming the validity of the ordinance, no burials could be made in the cemetery.

We must assume that no body has been buried in¡¡this cemetery, and the important question for us to determine is whether'the relator’s land, under the act of 1847, is exempt from taxation, although, so long as the ordinance remains in force as at present framed, no burials can be made therein.

We have no doubt that the relator was properly incorporated. It was not obliged to obtain the consent of the city of Rochester to its incorporation, nor, as has been contended on the part of the defendants, was it obliged to obtain the consent of the supervisors of the county of Monroe. The acts, chapter 280 of the Laws of 1852, chapter 238 of the Laws of 1854, chapter 164 of the Laws of 1871, and chapter 389 of the Laws of 1889, to which our attention has been called, do not relate to cemeteries in the county of Monroe, and relate only to the counties mentioned in those acts.

We have no doubt that the common council had power to pass the ordinance prohibiting the burial of the dead in this cemetery. Under the charter of the city (Laws of 1880, chapter 14, § 40), it is provided that the common council shall have power to “ make, modify and repeal such ordinances, by-laws and regulations as it shall deem reasonable within the said city for the following purposes ; ” and among the purposes specified is “to regulate the burial of the dead.” Under the power to regulate, the common council could prohibit the burial of the dead within the city limits. Cronin v. The People, 82 N. Y., 318. This ordinance is a police regulation which the legislature could authorize the common council to pass. Brick Church v. The Mayor, 5 Cowen, 538; Coates v. The Mayor, 7 id., 585; Matter of Ryers, 72 N. Y., 1.

It is immaterial that at the time the relator took the conveyance of its land it was lawful to use it for cemetery purposes and to bury the dead therein. The power possessed by the common council to regulate the burial of the dead is a continuing power and it may be exercised in its discretion from time to time as the public health and welfare may require.

So, we have no doubt that so long as the ordinance remains in force no dead body can be buried in this cemetery, and yet we reach the conclusion that its land cannot be taxed under the law of 1847. Section one of that act provides that any number of persons residing in this state, not less than seven, who shall desire to form an association for the purpose “ of procuring and holding lands to be used exclusively for a cemetery, or place for the burial of the dead,” may form a corporation as provided in that and the two following sections. Section four provides that any association incorporated under the act may take by purchase or devise, and hold within the county in which the certificate of its incorporation is recorded not exceeding two hundred acres of land, to be held and occupied exclusively as a cemetery for the burial of the dead, and further provides that “such land, or such parts thereof as may from time to time be required for that purpose, shall be surveyed and subdivided into lots or plots of such size as the trustees may direct, with such avenues, paths, alleys and walks as the trustees deem proper; and a map or maps of such surveys shall be filed in the clerk’s office of the county in which the land shall be situated.” These surveys and sub-divisions and maps thus authorized may be made from time to time, and all this is to be done before cemetery lots can be sold, and the lots are to be sold according to these surveys and maps. The section also provides that any association incorporated under the act may hold personal property not to exceed $5,000 besides what may arise from the sale of lots. Section seven, as amended by the act, chapter 108 of the Laws of 1879, provides that, “ all lots or plots of ground designated on the maps filed as aforesaid, and numbered as separate lots by the corporation, shall be indivisible, but may be held and owned in undivided shares. * * * One half, at least, of the proceeds of all sales of lots or plots shall be first appropriated to the payment of the purchase money of the lands acquired by the association until the whole purchase money shall be paid,' and the residue thereof to preserving, improving and embellishing the said cemetery grounds and the avénues or roads leading thereto, and to defraying the incidental expenses of the cemetery establishment. And after the payment of the purchase money, and the debts contracted therefor, and for surveying and laying out the land, the proceeds of all future sales shall be applied to the improvement, embellishment and preservation of such cemetery, and for incidental expenses and to no other purpose or object unless expressly authorized by law,” etc. Section ten provides that “ the cemetery lands and property of any association formed pursuant to this act shall be exempt from all public taxes, rates and assessments, and shall not be liable to be sold on execution, or be "applied in payment of debts due from any individual proprietor.” Section eleven provides that, “ whenever the said land shall be laid off into lots or plots or any of them shall be transferred to individual holders, and after there shall have been an interment in a lot or plot so transferred, such lot or plot from the time of such firsl; interment shall be forever thereafter inalienable, and shall, upon the death of the holder or proprietor thereof, descend to the heirs at law of such holder or proprietor and to their heirs at law forever.”

It is thus seen, by this brief review of the provisions of the act, that the land of the relator is held exclusively for cemetery purposes, and that it cannot be devoted to or used for any other purpose. It has no power to sell any of its land except to persons who desire it for burial purposes, and all of its land, the moment it acquires it, and before a dead body is buried therein, is absolutely exempt from all taxation. The cemetery land of such a corporation not only, but all its property, is thus exempt So long as Oak Hill cemetery exists as a corporation, it must hold its property exclusively for cemetery purposes, and while burials cannot now be made therein, the ordinance prohibiting them may be repealed or modified at any time so as to allow them. There is no provision in the statute that its land shall be exempt from taxation only so long as burials are authorized to be made therein. The exemption is absolute.

There is nothing in the act, chapter 708 of the Laws of 1869, or chapter 310 of the Laws of 1879, which affects the exemption from taxation conferred by § 10 of the act of 1847. By the act of 1869/ § 10 is amended only in reference to the rights of individual proprietors of lots, and it in no way changes the exemption of the corporation from taxation as provided in § 10 of the act of 1847. The act of 1879 is not an amendment of the act of 1847, and does not relate to cemeteries owned by corporations organized under that act It relates to other cemeteries not established under that act. This fully appears from § 2, which is as follows: “ Whenever any such land shall cease to be used for cemetery purposes, any judgment, tax or assessment which, but for the provisions of this act, would have been levied, collected or imposed, shall thereupon forthwith, together with interest thereon, become and be a lien and charge upon such land, and collectible out of the same.” That section plainly has no reference to a corporation organized under the act of 1847, for the reason that independently of the act of 1879 no tax could be levied upon the lands of such a corporation, the exemption from taxation being due to the act of 1847, and not to that of 1879. The purpose of that act was to secure to cemeteries not established under the act of 1847 exemption from taxation and other immunities which they did not before possess.

It cannot be well contended that the cemetery land exempted from taxation under the act of 1847 is only such portions of the land purchased for cemetery purposes as are surveyed, mapped and laid out into lots under § 4. The purpose of those provisions is the convenience of sale, the security of titles and the benefit and protection of lot owners. We have no reason to suppose from any language used in the act that it was the intention of the legislature that any portion of the cemetery land not laid out into lots, but which must nevertheless be held exclusively for cemetery purposes, should be subject to taxation.

The question may be asked, what is to become of the land of this corporation if it cannot be used under the ordinance of the city for cemetery purposes, and if the corporation cannot devote it to any other purpose ? The answer is that unless the corporation can secure a repeal of the ordinance it can do none of the business for which it is organized, and it may apply for a voluntary dissolution, and then dispose of its land in the mode provided in the case of the dissolution of corporations. In case it should refuse to take proceedings for a voluntary dissolution, the attorney-general, in behalf of the people, may, after it has suspended its ordinary and lawful business for a year, institute an action for its dissolution. And, in any event, the legislature may provide by an amendment of the act of 1847 for the taxation of cemetery lands thus situated. Until the legislature shall take action in that, direction, we must follow the plain language of the statute as it now is. The common council of the city cannot take away from this corporation its exemption from taxation by simply prohibiting the burial of the dead in its land. All its land and property are exempt from taxation, and we must give force and effect to the statute.

The orders of the general and special terms should be reversed, and the assessment upon the relator’s property ordered to be vacated, and stricken from the assessment roll, with costs to the appellant in all the courts.

All concur.