text:
    Seiser Brothers Company, Pl'ff, v. Potter Produce Company, Def't.

      (Supreme Court, New York Special Term,

      Filed March 1, 1894.)

    1. Attachment—Corporation—Foreign.
    An affidavit for an attachment, in an action on contract, by one against another foreign corporation, must state either that the contract was made, or the cause of action arose, within this state.
    2. Same—Jurisdiction.
    In such case, an appearance and consent cannot confer jurisdiction.
    Motion to dissolve plaintiff’s attachment and to set aside the judgment entered in favor of plaintiff, and an execution issued thereon.

      John Brooks Leavitt and Leavitt, Wood & Keith, for motion; Klon S. Idobbs, opposed.
   Patterson, J.

This motion is made by a junior attaching creditor to vacate an attachment granted to the plaintiff in this action, and also to vacate a judgment entered in favor of the plaintiff herein against the defendant, and an execution issued on such judgment. The question discussed relates to the jurisdiction of this court over foreign corporations. The papers show that this plaintiff and the defendant are both corporations of that character. In the month of November, 1893, and in this action, an attachment was granted upon an affidavit which clearly was insufficient to confer jurisdiction under the rulings in Smith v. Union Milk Co., 70 Hun, 348; 53 St. Rep. 891, inasmuch as it failed to set forth that the contract sued on was made within the state, or that a cause of action arose therein. On the 2d day of January, 1894, the defendant in this cause appeared by an attorney, and offered to allow judgment for a certain sum to be entered against it. That offer was occepted,-and judgment in accordance therewith was entered and execution was issued. On the 5th day of January, 1894, the party now moving, being a resident of the state, brought an action in the city court, and obtained a warrant of attachment against the defendant; and he now seeks to advance his lien by having both the intermediate and final process of this court declared to be invalid, as having been issued without jurisdiction to do so.

That the granting of the plaintiff’s warrant of attachment was unauthorized is quite clear, but the question remains as to the judgment and execution. That judgment was entered after and upon a general appearance of the defendant by attorney. Prior to the enactment of the Code of Civil Procedure, that submission to the jurisdiction of the court would have sufficed to'maintain the judgment. That was held in the well-known'case of McCormick v. Penn. Cen. Railroad Co., 49 N. Y 303. By the sections of the former Code of Procedure relating to the subject of the jurisdiction of the courts of this state over foreign corporations the suit of nonresidents, no limitation was placed upon thegeneraj^ common-law power to entertain such actions when service of process was personally made upon their officers within the state, and general appearance by attorney was equivalent to such service. But by § 1780 of the Code of Civil Procedure a different rule of jurisdiction was adopted, and a distinct limitation has been placed upon it. The right of the nonresident or of the foreign corporation to maintain such an action as this in the courts of this state is confined to the cases specified in the section referred to ; and the decision in Robinson v. Oceanic Steam Navigation Co., 20 St. Rep. 741, directly covers this question, and holds that an action by a nonresident, etc., cannot be maintained .against a foreign corporation on a cause of action which arose out of the state, and that the jurisdiction of the courts is defined and limited, and absolutely confined to the cases specified. This necessarily includes the idea that appearance and consent can confer jurisdiction in any other case, or on any other, cause of action, and, indeed, in the Robinson Case the report shows that the defendant had joined issue by answering, and even went so far as to notice the case for trial. The court proceeded to say: “ It is not sufficient that a nonresident plaintiff should, by any service of process or in any other way, obtain jurisdiction of a foreign corporation; but, before the action can be maintained, there must also be jurisdiction of the subject-matter of the action. Jurisdiction of the action cannot be conferred upon the court by any consent or stipulation of the parties.”

We are not at liberty to draw any inferences respecting the place at which the cause of action arose, or the contract was made. The complaint is silent as to that. The necessary averments to give jurisdiction are wanting in the complaint, as well as in the affidavit on which the attachment was granted, and the court cannot supply them arbitrarily. Such averments are part of the subjéct-matter of the action, and without them no cause of action is shown, and the failure to plead them is fatal. The ordinary presumptions concerning courts of general jurisdiction do not apply in this case, under the terms of § 1780, as they are explained and interpreted in the Robinson. Case, above cited.

The motion must be granted, with $10 costs.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    The People ex rel. Baldwin et al., Pl’ffs, v. Henry M. Goldfogle, as Justice, etc., et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed April 19, 1894.)

    Summary proceedings—-Discontinuance—Claim of title to land.
    Summary proceedings against tenant is not to be discontinued on account of the answer setting up a claim of title to land.

      Application for a writ of prohibition.

      Isaac M. Miller, for relators; George W. Stephens, for def’ts.
   O’Brien, J.

The writ of prohibition is a state writ (Code Civ. Proc. § 1991), and, as stated in the note of the commissioner in Throop’s Code : “ It issues only to courts and judicial officers, acts only upon legal proceedings pending before those tribunals, almost invariably involves pure questions of law, and aims only to procure a stay of proceedings.”

As said by the commissioner : “It was thought that this writ had survived its practical utility, and that all the practical benefits of the writ might be obtained by means of an injunction. * * * The Laws of 1873 (chapter 70) provided for the extension of the power to issue the writ of prohibition as well as the writ of mandamus.

Although retained, therefore, the writ is confined in a narrow field of operation.

In speaking of this writ, McAdatn on Landlord and Tenant (2d ed. p. 205) says: It “ may be defined as an extraordinary judicial writ, issuing out of a court of superior jurisdiction, and ■directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. It is the remedy afforded by the common law against the encroachments of jurisdiction by inferior courts, and is used to keep such courts • within the limits and bounds prescribed for them by law.”

And on page 706 that author says: “ Where a petition in summary proceedings presents such a case as the officer can consider, a writ of prohibition will not lie. The remedy of the tenant is to appear before the officer, and either deny the facts set forth in the petition or move for its dismissal. People v. McAdam, 2 Civ. Proc. R. 52. While the writ of prohibition issues to restrain a judicial tribunal from exercising jurisdiction in matters not within as well as those in excess of its cognizance, it has never intended that the writ should be used as a means of interfering with the orderly practice of the courts, or as a method of staying summary proceedings.”

I do not understand that it is claimed that the justice did not have the right to entertain the proceeding, or did not obtain jurisdiction by the filing of a proper petition, the claim being that he lost jurisdiction by the filing of the answer, which set up a question of title, and by the furnishing of an undertaking, pursuant to §§ 2951 and 2952 of the Code. By the express terms of those sections, they are confined to actions, and not to summary proceedings ; and this has been directly held in Re White, 12 Abb. N. C. 348. Summary proceedings are not “actions,” within the meaning of the Code ; and this was held as long ago as the case of People v. Hamilton, 39 N. Y. 107,—a case arising prior to the present Code. In the present Code the sections applicable are classified under the head of “Certain Special Proceedings Instituted Without Writ.” It is true that provision is made for the filing of an answer, by which, under the amendment of 1893 (chapter 705), the tenant or defendant is permitted to sét up any legal or equitable defense, and for the trial of such issues by the judge, unless a jury trial is demanded. These state a practice with respect to summary proceedings entirely unlike that provided by other sections of the Code for actions in justices’ courts.

The question in summary proceedings is whether the relation of landlord and tenant exists. The.question of title cannot arise, the one presented being as to the right to possession, and the decision simply determines who is entitled to the possession, and cannot in any way affect title to land. I think, therefore, that the justice was correct in holding with the plaintiff that, by the filing of the answer and the tendering of a bond, he was not ousted of jurisdiction to try the summary proceedings, even though a tender of a plea of title to real estate was made. It is doubtful, however, in this case if, even under the answer, a plea of title was tendered ; but, whether it was or not, I do not regard it as sufficient to prevent the justice from proceeding, he having jurisdiction to determine in such proceedings the question of possession. The justice has therefore a right to try the questions involved, which, however, does not prevent him, should he deem it proper in case a question of title appears upon the plaintiff’s proof, from dismissing the proceedings. In other words, the writ of prohibition should not issue except in a case where the court has no jurisdiction, or is proceeding in excess of its jurisdiction; the remedy for any error in the proceeding itself or for any wrongful decision or ruling of the justice being by appeal. My conclusion, therefore, is that the motion for the writ should be denied, with costs.


author: Gtldersleeye, J.

text:
    Bradley and Currier Company, Limited, Pl’ff, v. Frank W. Herter et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed April 17, 1894.)

    1. Trtai,—Jury—Waiver.
    In an action to enforce a mechanic’s lien, the court must grant an application, siasonably made, for trial by jury of questions of fact arising on a counterclaim for damages.
    2. Same.
    When the right to trial by jury, in such case, is not waived.
    3. Same.
    Rule 31 of the general rules of practice do not apply in an action to foreclose a mechanic's lien.
    Motion to state issues for trial by jury.

      Austin K. Pressinger and Otis & Pressinger, for pl’ff; Martin J. Keogh, for def’t Herter; Frank Baker, for def’ts Appell and Brose.
   Gtldersleeye, J.

The action is brought to foreclose a mechanic’s lien. The defendant Herter served an answer denying material allegations of the complaint, and setting up a counterclaim for damages to said defendant by reason of plaintiff’s failure to complete the contract set forth in the complaint. The plaintiff served a reply denying the allegations of the counterclaim. Notice of trial was served by the plaintiff for the special term, and the cause appeared on the special term calendar on April 6th instant, and was set down for trial for April 17th. On April 9th defendant Herter obtained an order to show cause, returnable April 12, why issues should not be framed for trial by jury. It is this motion that is now to be determined.

In an action to enforce a mechanic’s lien, it is imperative on the court to grant an application, seasonably made, for trial by jury of questions of fact arising on a counterclaim for damages. See Deeves v. Metropolitan Realty Co., 6 Misc. 91; 55 St. Rep. 399. The plaintiff, however, contends that defendant has waived his right to a trial by jury by reason of laches; and plaintiff’s counsel cites Mackellar v. Rogers, 109 N. Y. 468; 16 St. Rep. 406; affirming 52 N. Y. Supr. Ct. 468, in support of his contention. But I hardly think that case can be held to apply to this motion, because in that case it was held that defendant had waived his rights, for the reason that he had himself noticed the cause for trial at special term, and he did not make his motion for a jury trial until the. cause was reached for trial at the special term. In the case at bar the defendant is not guilty of either of these acts of waiver. ■ '

Nor do I think that rule 31 of the general rules of practice sustains plaintiff’s position, for that applies only to cases where the trial of issues of fact is not provided for by the Code, and the motion here under consideration is covered by the provisions of §§ 970 and 974 of the Code. The motion is granted without costs.


author: Gtegerich, J.

text:
    Frederick Robinson, Pl’ff, v. Marie Anna Klein et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed May, 1894.)

    Stay of Proceedings—Waiver.
    A stay of proceedings for non-payment of costs, awarded on motion to make the complaint more definite and certain, is not waived by answering tlie amended complaint served before the stay began to operate.
    Motion for judgment on ground that plaintiff had no right to file a reply as his proceedings were stayed.

      Herbert Grundel, for motion; Menken Bros., opposed.
   Gtegerich, J.

The plaintiff having failed to pay the motion costs, his proceedings were stayed until payment thereof, the stay extending to the service of a reply to the counterclaim pleaded by the defendants. Lyons v. Murat, 4 Abb. N. C. 13; 54 How. Pr. 23. The defendants did not waive the-stay by serving an answer to the amended complaint, which was served before the stay began to operate. Code Civ. Proc., § 779; Marks v. King, 66 How. Pr. 458. Motion granted, with $10 costs, unless within ten days after entry of the order the plaintiff pay the costs of the former motion and $10 costs of this motion, making in the aggregate $20 costs, and serve his reply herein, leave to serve the same being granted upon payment of $20 costs within the time above specified.


author: Fitzgerald, S.

text:
    In the Matter of the Assessment of the Estate of Fayerweather, Deceased.

      (Surrogate’s Court, New York County,

      Filed May, 1894.)

    Transfer tax—Exemption.
    Section 2, chap. 399 of 1892, does not apply to foreign religious corporations.
    Appeal from an order assessing the tax on a legacy.

      Howard A. Taylor, for legatee; Emmet R. Olcott and Edgar J. Levey, for comptroller.
   Fitzgerald, S.

This is an appeal from an order heretofore entered herein, assessing the transfer tax upon a legacy of $100,000 bequeathed to Lincoln University. The appellant claims to be entitled to exemption from taxation under the transfer tax act, as a religious corporation. The Lincoln University was incorporated by an act of the legislature of Pennsylvania. From its charter it appears that it was established as an “ institution of learning for the scientific, classical and theological education of colored youth of the male sex,” and was empowered, among other things, “ to provide libraries, apparatus and all other needful means of imparting a full and thorough course of instruction in any or all of the departments of science, literature, the liberal arts, classics and theology.” While the theological department of the university is under the supervision of the assembly of the Presbyterian church, the university admits “ colored pupils, of the male sex, of all religious denominations.” The controversy between counsel was .very spirited as to whether the appellant answered the definition “religious.” While I have grave doubt that it is included in that term, I prefer to base my decision upon another ground. A statute of a state granting privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the state over which it has the power of visitation and "control. In re Prime, 136 N. Y. 347; 49 St. Rep. 658; Vanderpoel v. Gorman, 140 N. Y. 563, 575; 56 St. Rep. 503. It is the policy of society to encourage benevolence and charity. But it is not the proper function of the state to go outside of its own limits, and devote its resources to support the cause of religion, education, or missions for the benefit of mankind at large. In re Prime, supra. Assuming that Lincoln University is a “religious corporation,” I am of opinion that, as the act manifests no intention on the part of the legislature to include foreign corporations within the exemption, it must be restricted to religious corporations organized under the laws of the state of New York. The order appealed from is affirmed.


author: Gaynor, J.

text:
    In the Matter of the Application of John O’Rourke for a Mandamus.

      (Supreme Court, Kings Special Term

      Filed September, 1894.)

    1. Municipal corporation—Ordinances.
    Subd. 8, § 12, chap. 583, of 1888, confers upon the common council of the city of Brooklyn power to regulate and license places of public amusement, and, as incident thereto, to curtail their number to the extent of refusing licenses to places which, if used for such purposes, would interfere with the general welfare, peace and order.
    2. Same.
    Where the common council has passed an ordinance requiring licenses to be obtained of the mayor, such ordinance simply requires him to grant them in every case.
    3. Same.
    To require the mayor to license does not confer upon him the power to prohibit.
    Application for a writ of mandamus to compel the mayor of Brooklyn to issue a license to a place of public amusement.

      J. A. Wernberg, for petition; A. M Mudge, asst corp. counsel, opposed.
   Gaynor, J.

Though no briefs were submitted, this case is by no means plain. The petitioner applied to the mayor of the city of Brooklyn to license a certain building in the thirty-first ward (formerly the town of Gravesend) for the purpose of public exhibitions and contests in athletic games, including rowing, bicycling, club swinging, fencing, wrestling, boxing, and was refused. The license applied for concededly comes under the head of “ places of public amusement,” both in the charter and the ordinances of the city of Brooklyn. The charter act (chap. 588, Laws 1888, § 12, title 2) provides in so many words that the cojnmon council shall have power within the said city to make ordinances not inconsistent with the laws and constitution of this or of the United States, for certain enumerated purposes, one of them being this (sub. 8): “ To prohibit or regulate and license all places of public amusement.” This language—to prohibit or regulate and license—is broad, but the legislature did not intend thereby to confer power upon the common council to prohibit, or authorize the prohibition of, all places of public amusement. The true construction is that it meant to confer power to regulate and license places of public amusement, and as incidental thereto to curtail their number to the extent of refusing licenses to places which, used for such a purpose, would interfere with the general welfare, peace and order; and in this respect the legislature conferred an absolute discretion. The regulation and control of public amusements come within what we call the police power of the legislature, so closely do they concern social order; and it has been decided in this state that the legislature may confer upomthe mayor of a city absolute discretion in the licensing of auctioneers or places of public amusement in respect of the persons or places to be licensed. The People ex rel. Schwab v. Grant, 126 N. Y 473; 38 St. Rep. 499; The People ex rel. Worth v. Grant, 58 Hun, 455; 34 St. Rep. 921; People ex rel. Dorr v. Thacher, 42 Hun, 349; 3 St. Rep. 710. It being, therefore, true that the legislature did by the provision already cited validly confer upon the common council of Brooklyn the power to pass ordinances to regulate and license, and in so doing to prohibit places of public amusement in the way and to the extent already mentioned, it remains to be seen whether the common council has exercised such power of prohibition. It has passed an ordinance requiring licenses to be obtained of the major, and the question is whether such ordinance confers a discretion upon the major to refuse licenses, or vests him with no discretion, but simpij requires him to grant them in everj case. The ordinance is as follows: “The following named persons or classes of persons are herebj required to be licensed, and licenses shall be granted to them bj the major to carrj on their respective trades or occupations, to wit.: Coachmen, drivers of hacks, trucks, cabs, omnibusses, common carriers', carriers of passengers, common criers, hawkers, peddlers, pawnbrokers, auctioneers, junk dealers, keepers of intelligence offices, and slaughter houses, dealers and speculators in tickets to theatres or other places of public amusements, keepers of billard saloons, bowling allejs, shooting galleries, exhibitions of circuses, manageries and common shows, and owners or managers of theatres, opera halls, plaj houses, and all other places of public amusements, also public expressmen, public cartmen and public truckmen.” It will be observed that the language is mandatorj. The persons enumerated are “required to be licensed, and licenses shall be granted to them bj the major; ” and the next section of ordinance enacts that “ the license required, to be granted bj the foregoing section shall be issued bj the eitj clerk and signed by the major.” The legislature conferred upon the common council, as we nave seen, power to make an ordinance under which places of public amusement could, in the exercise of an absolute discretion, be prohibited. If it be assumed that the common council could delegate such power and discretion to the major, has it done so? The word “maj” is often held to mean “shall,” as under that mild form positive dutj to do a thing is some times created, The Mayor v. Furze, 3 Hill, 612, but the word “shall” is mandatorj. It excludes the idea of discretion when addressed to a public official. In the state of Pennsjlvania a statute altogether similar to this ordinance was held to confer no discretion upon the major to refuse an application to license a theatre. Commonwealth ex rel. Miller v. Stokely, 12 Phila., 316. The power having been given to the common council, to exercise or not, according to its discretion, it is not for this court bj stretching a point, or bj labored construction, to saj that it has exercised it. The legislature left it to the common council, and not to this court, to saj whether such power should be texercised. To require the major to license, as it has done, bj no means confers upon him the power to prohibit. Recurring again to the text of the ordinance, it is seen to cover manj occupations and businesses. Did the common council intend to confer upon the major absolute power to prohibit, for instance, coachmen, drivers, common carriers, junk-dealers, billard saloons, expressmen, cartmcn and truckmen ? for these are all enumerated in the ordinance. No distinction in respect of anj of them is made; jet it is, to saj the least, a question for argument whether the legislature itself could con Eer such power in the case of some of them. The power to control or interfere with lawful occupations affords so easy a way to both corruption and tyranny that it ought to all times to be kept within safe limits. Tiedman on Police Power, 289. It is permitted at all only for the sake of the general welfare, and hence only to that extent; and it is noticable that when it is allowed to go beyond the strict limit, it is . often used as a cover to arbitrary power and official corruption. Under our system of government public officials may not assume a power not conferred upon them by some law. They are mere agents and servants of the people, with no power which the people have not given them, We enact laws by our representatives assembled in legislative bodies, and then elect officials to execute them, saying to them as we point to such laws: “Thus far you may go and no farther; these laws are your power of attorney.” The common council of Brooklyn, elected by the people, acting in its legislative capacity, enacted this ordinance, and the mayor may exercise no power in the premises which it does not confer upon him. If we recur to the charter provisions under which the ordinance was framed and passed, we find that the power to prohibit was in express words conferred by the legislature upon the common council only in two of the cases enumerated in the ordinance, which follows the enumeration in the charter itself; namely, places of public amusement (which we are considering), and slaughter houses (sub. 11). The express delegation of the power to prohibit in these two cases marks and emphasises the withholding of it in all. the other eases. The ordinance (art. 2) also contains a provision (sec. 1) that no person shall conduct or carry on any occupation' or business mentioned in the ordinance until he has obtained a license; and then follow various penalties, according to the occupation or business, to be imposed upon conviction in a competent court for violation of such provision. I cannot see in this any intention to vest power in the mayor to refuse licenses, and thereby prohibit, in his discretion. On the contrary, it is only the ordinary method or sanction to execute the ordinance, and compel licenses to be taken out. Nor does the provision in the ordinance that “any person licensed as aforesaid, who shall violate any regulation or provision of this ordinance, shall, upon conviction, have his license revoked by the mayor, in addition to the other penalties fixed by this ordinance,” indicate the confering of such power upon the mayor (12 Phila., supra). On the contrary, that he is not given the power to revoke a license except after conviction of the holder in a competent court, makes it plain that the common council carefully refrained from authorizing the mayor to say what persons or places were fit to hold licenses. I may not consider the question whether it might be wise for the common council to give the mayor absolute power and discretion to license or refuse to license places for public amusements, except in so far as it may bear upon the question whether the language under construction can be said to even suggest any intention or disposition of the common council to confer upon the mayor a power so great And in the same view 1 need not refrain from saying that the existence of such powers as this case has required me to consider have only too often been used for political coercion, the extortion of money and even the levy of blackmail. Arbitrary power is abhorrent to our system of government. The evils which come from it in cases where it exists will be found in most instances graver than those which the grant of it was designed to prevent. To license this place need do no harm. The refusal is put upon the ground that before the town of Gravesend became a part of Brooklyn some prize fights were had in this building. Surely, Brooklyn has policemen enough to see that that does not occur now. The license will not be to violate the law. If in any exhibition there be any violation of law, any citizen, which includes any policeman, may summarily and without warrant arrest the offenders in the act. The laws are ample for the prevention of immorality or of illegal acts of any kind in places of public amusement. Finally, if the common council desires to confer upon the mayor the absolute power and discretion of giving or refusing licenses, it is for it to pass an ordinance to that effect. This court may not do so, but is bound to decide according to law and ordinances as-they are.

The motion is granted.


text:
    In the Matter of the Writ of Habeas Corpus for Harris Blum.

      (Supreme Court, Kings County Oyer and Terminer,

      Filed September, 1894.)

    1. Criminal law—Warrant.
    A police officer, or any other person, may not cause the arrest of any one on a mere allegation of information and belief.
    2. Same.
    The commission of a crime must be shown by facts positively stated, before a magistrate has jurisdiction to issue a warrant of arrest.
    3. Same—Waiver.
    But where a person, in such case, has demanded and stood trial without objection, he cannot be heard, after conviction, to claim that the court had no jurisdiction of his person.

      William Wills, for the petitioner; John F. Clarice, Assistant District-Attorney, for the people.
   Gaynor, J.

The petitioner was convicted by a police court, or court of special sessions of Brooklyn, for selling a ticket or chance in a lottery, which is made a misdemeanor by § 826 of the Penal Code. He now sues out the writ of habeas corpus and asks for his discharge from the judgment of conviction on the ground that the court never had jurisdiction of his person, and therefore had no power to render judgment against him. If the claim of want of jurisdiction were true, the petitioner would have to be discharged. The written complaint against the defendant was by a police officer. It charges the defendant with selling a lottery ticket on a specified day, but concludes as follows: “ Deponent further says that he makes this complaint upon information and belief as a police officer of the city of Brooklyn.” A police officer, or any other person, may not cause the arrest of any one on a mere allegation of information and belief. Human liberty never was so cheap as that under our law, or the system from which we derived the main body of our law. The commission of a crime must be shown by facts positively stated before a magistrate has jurisdiction to issue a warrant of arrest. This is guaranteed by the bill of rights (R. S., part 1, chap. 4, § 11), which provides that “ the right of the people to be secure in their persons and effects against unreasonable searches and seizures ought not to be violated, and no warrants can issue but upon probable cause supported by oatli or affirmation.” No one who knows the history of this guarantee to individual liberty, and the struggles of the people for it against despotic power, and out of which it came, can see it infringed without a feeling of resentment. It is important that crime should be punished, but far more important that arbitrary power should not be tolerated. The “oath or affirmation” required is of facts. The claim on the argument that this complaint gave the magistrate no jurisdiction to issue the warrant, and-that he is liable to an action for damages by the defendant for having done so and caused his arrest, is true. Blodgett v. Race, 18 Hun, 132 ; Comfort v. Fulton, 39 Barb. 56. But while the arrest of the defendant was a trespass, for which the magistrate and all concerned in it are liable in damages, I am of opinion that though the magistrate had no jurisdiction to issue the warrant, the defendant afterwards, by his own act, conferred jurisdiction over his person upon the court of special sessions. When arraigned before the magistrate he did not object that he was illegally arrested and that the magistrate had no jurisdiction, nor did he afterwards make such a claim. He not only failed to do so, but he recognized the complaint, pleaded not guilty, demanded trial by a court of special sessions, and stood trial without claiming, at any time, any lack of jurisdiction in the court. Having demanded and stood trial without objection he cannot be heard after conviction to claim that the court had no jurisdiction of his person. Crocker on Sheriffs, 3d ed., p. 42. I do not deem the case The People ex rel. Kingsley v. Pratt, 22 Hun, 300, in point. That was the case of the summary statuary conviction by a magistrate of one coming under the statute for the disposition of disorderly persons, and the decision may not be extended beyond such cases. The distinction in respect of jurisdiction between the exercise of special summary powers vested in judicial officers or in courts, and the regular proceedings within their ordinary jurisdiction, is well understood. Nor is the case The People ex rel. Lotz v. Norton, 58 St. Rep. 736, in point. There no offense was stated in the complaint or proved. That the court of special sessions in the case at bar had jurisdiction of the offense itself is not disputed. The writ is dismissed.


author: Gtldersleeve, J.

text:
    William W. Clendinning, Resp’t, v. Richard Lindner, App’lt.

      (New York Superior Court, General Term,

      Filed October, 1894.)

    1. Lease—Renewal—Holding over.
    Holding over by tenant after expiration of the term is an election on his part to renew the lease.

      2. Same—Duty of landlord.
    The landlord owes the tenant no duty to relet the premises.
    Appeal from judgment entered on verdict of a jury, rendered under direction of court.

      A. L. Pencoffs, for app’It; Kelly & MacRae ( W G. Beecher. of counsel), for resp’t.
   Gtldersleeve, J.

This action was brought to recover rent of certain premises. The court below directed a verdic^for plaintiff, and the defendant appeals from the judgment entered thereon. The making of the lease was admitted by the defendant. The recovery was for a term covered by an alleged renewal which the defendant, in his answer, denies making. The proof clearly establishes a holdiug over by the defendant, and the creation thereby of a liability to the plaintiff for the rent'sought to be collected. The holding over was an election to renew the lease, and continued the tenancy for the whole balance of flhe unexpired time. Elwood v. Forkel, 35 Hun, 202. The defendant did not show a surrender, nor is there such a conflict of testimony as to this alleged defense that called for its submission to the jury. The testimony relied upon to establish the alleged surrender consists of conversations between the parties had before the bolding over took place. At the most the statements thus made by the defendant can only be considered as information to the plaintiff of something the defendant proposed to do. There is no evidence that he ever did what he proposed. The proof will not sustain a finding of surrender and acceptance. The plaintiff owed the defendant no duty to relet the premises. The rejection of proof tending to show the plaintiff’s neglect in this regard was not error. The appellant’s objections to the validity of the judgment, not already considered, rest upon some alleged breach of a covenant in the lease. The pleadings do not admit any such clause as claimed by the appellant. The lease was not put in evidence on the trial. No proof was offered as to the covenant in question, and there is nothing in the record upon which to base a discussion of the rights of the parties arising from the covenants in the lease.

The judgment is right and should be affirmed, with costs to the respondent.


author: Bischoff, J.

text:
    Thomas A. Maitland, Pl’ff, v. Manhattan Railway Company, Def't.

      (New York Common Pleas, Chambers,

      Filed July, 1894.)

    1. Injunction—Elevated railway.
    An abutting owner may restrain the continued invasion of his property rights by an elevated railway, without proof of more than nominal pecuniary damage.
    2. Same.
    Such relief may be granted, where the railway, or an addition to it, remains a mere matter of projection.

      3. Same.
    So, such relief may be granted, where tlie company is proceeding to exercise its power of eminent domain without a compliance with the conditions, upon which the proper exercise of power was delegated.
    Motion of the plaintiff, an abutting owner, to restrain the defendant from constructing and operating an additional track for the purposes of its elevated railway in Ninth avenue, in the city of New York.

      Chas. Gibson Bennett, for pl’ff; Julien T. Davies and Alex. A. Lyman, for deft.
   Bischoff, J.

Upon the argument of this motion, it appeared, without contradiction, that the plaintiff is the owner in fee of the premises known as Nos. 242, 244, 258, 284, 286, 288, 358, 355 and 357, and for a leasehold estate in Nos. 343, 345, 347, 349 and 351 Ninth avenue, in the city of New York, along which avenue the defendant now maintains and operates an elevated railway, consisting in part of a double track, located in the centre of the roadway, and between which tracks there is an open space eighteen feet wide and extending in a line along and parallel with the avenue. Through this open space light and air pass to the surface of the avenue under the structure. It also appeared unchallenged that the defendant has acquired the necessary public authority to maintain and operate this double track for the purposes of its railway, and that to the same extent also it has acquired the easements in the street which are appurtenant to the plaintiff’s abutting premises. Further, it appeared that the defendant is engaged in the construction of a third track which is intended to be located in the open space between the existing tracks, for permanent use, and to be of so substantial a character as to completely close the space, so that by its maintenance and operation the physical effects of the railway upon the abutting premises will be correspondingly increased. It was conceded that this proposed third track had already been extended in front of the premises Nos. 242, 244 and 258 Ninth avenue, when its further progress was checked by the preliminary injunction which was granted herein to endure, pending the decision of this motion to continue it, until the determination of this action for injunctive relief. It was likewise conceded by the defendant that, in so far as the construction and operation of the additional track would increase the physical effects of the railway upon the plaintiff’s abutting premises, they involved a further taking of the plaintiff’s easements, for w^hich no compensation had been made. The defendant did not in any manner suggest its readiness to institute proceedings with a view of acquiring the rights of the extent of its further interference therewith upon payment by it of the compensation to be determined in such proceedings; but was content to rest its opposition to the motion for continuance of the injunction upon the ground that a proper exercise of judicial discretion made a denial of the motion imperative, because, firstly, the defendant was vested with public authority to con-struct, maintain and operate the third track; secondly, because the construction and operation of the track would afford great public comfort and convenience and was undertaken to promote a popular desire for increased transit facilities; and, thirdly, because the maintenance and operation of the proposed third track would not materially increase the physical effects of the railway upon the plaintiff’s abutting premises, nor substantially lessen their fee or rental values, and so that the invasion of the plaintiff’s property rights would at most be a technical one.

To substantiate its contention that the physical effects of the railway upon plaintiff’s premises would not be materially increased by the proposed addition to the railway, nor the fee and rental values of the premises be thereby materially impaired, defendant submitted the affidavits of a number of persons, which, however, in this regard conflict with the affidavits read by the plaintiff.

I assume, without so deciding, that the defendant has, as it contends, ample legislative and municipal authority for the construction and operation of the projected third track, and yet conclude that a proper exercise of judicial discretion requires that the defendant be enjoined until it has acquired the rights of abutting owners by the forms of law.

That an abutting owner is entitled to easements of light, air and access in the street or avenue immediately in front of his premises, and that these easements are property and entitled to the protection of the constitutional interdiction oi the confiscation of private property for public uses, was ruled in Story v. N. Y. El. R. R. Co., 90 N.Y. 122; Lahr v. Met. El R. Co., 104 id. 268; 4 St. Rep. 340; Abendroth v. Man. R. Co., 122 N. Y. 1; 33 St. Rep. 475; and Kane v. N. Y. El R. R. Co., 125 N. Y. 164; 34 St. Rep. 876. The taking of these easements by the defendant, except m the proper exercise of its power of eminent domain, constitutes a continuing trespass, to .redress which the interposition of a court of equity by injunction affords an appropriate remedy, since the owner cannot maintain ejectment nor in trespass recover damages for the permanent depreciation of his property. Knox v. Met. El. Ry Co., 58 Hun, 517; 36 St. Rep. 2. That the damage to the plaintiff’s premises, as a result of the additional appropriation of his easements for the uses of the third track, will be more than nominal is apparent from the facts that the projected structure is to be a substantial addition to that now existing, and so, considering the uses for which it is designed, will impede the passage of light and air over the avenue to the plaintiff’s premises, beyond the extent of the. obstruction wrought by the existing structure and its uses, and to an increased degree will vitiate the air by smoke, steam, cinders and noxious odors. How far the plaintiff’s premises may suffer in their rental and fee values from the further interference with the easements appurtenant, thereto is a mere matter of speculation in which it is idle to indulge for the purposes of this motion. The fact remains that the threatened mischief materially deprives the plaintiff of the beneficial occupation and enjoyment of his premises. To say that for each proposed substantial addition to the railway the abutting owner must, as a condition of injunctive relief, demonstrate a distinct prospective pecuniary loss, is to imply’that the defendant may proceed to take piecemeal, without compensation, property which it could not otherwise lawfully appropriate, except upon payment of. just compensation. To require proof of pecuniary damage as a condition of enjoining defendant’s proposed unlawful acts, means to encourage a contempt of law and of the form of law. In view of its privilege to acquire the right of abutting owners upon payment of just compem satiou it was deemed equitable, where the railway was completed without objection, to inquire into the extent'of the plaintiff’s pecuniary loss and to deny the claim to injunctive relief where' the loss proved to be merely nominal. This was so, however, not because pf regard for the defendant, but because of the public mischief which would follow the interruption of accustomed means of travel. Aside from these considerations of public convenience, the plaintiff was entitled, as against the defendant trespasser, to restrain the continued invasion of his property rights without proof of more than nominal pecuniary damage, unless by acquiescence of the plaintiff the invasion would ripen into a right. Moore v. N. Y. El. R. R. Co., 58 St. Rep. 169.

For the reasons stated, I am of the opinion that this motion should be granted. The present case is clearly distinguishable from the cases cited by the learned counsel for the defendant, in which it is held that an interlocutory injunction should not be granted when the facts to support it are disputed, and* may only be definitely ascertained upon the trial. Here, however, the defendant concedes its unlawful invasion of the plaintiff’s property in part, and boldly asserts that, unless restrained, it will proceed with the further accomplishment of the threatened wrong. To countenance this attitude by a denial of the motion is to render the plaintiff remediless if hereafter the defendant’s trespass shall result in substantial pecuniary loss to the plaintiff.

Unquestionably, a popular desire for increased transit facilities affords the defendant a strong inducement to undertake the construction and operation of the addition, but does not justify the seizure of private property for such uses without adequate compensation, unless every efficacy of the constitutional interdiction in that respect is to be disregarded. The resultant public inconvenience of the sudden interruption of travel on a railway in actual operation has been held to require a denial of injunctive relief, but the same consideration cannot apply where the railway, or an addition to it, remains a mere matter of projection. As well might the defendant, after acquiring legislative and municipal consents to the construction and operation of an elevated railway upon a particular street, seize that street in defiance of the rights of the abutting owners, and then, with equal vigor, urge against every attempted redress that its contemplated unlawful conduct will result in a public benefit.

A further ground for equitable interference by injunction, upon the complaint of a person specially aggrieved in a case like the present, and aside from any consideration that the threatened wrong is without adequate legal redress, is stated to be that the ■defendant is proceeding to exercise its power of eminent domain without compliance with the conditions upon which the proper ■exercise of the power was delegated to it. Lewis on Eminent Domain, 632, and cases there cited.

Motion granted,, with $10 costs, and injunction continued pending the determination of this action.

Order to be settled on notice.


author: Pryor, J.

text:
    Antonia Guliano, Pl’ff, v. John H. Whitenack, Def't.

      (New York Common Pleas, Special Term,

      Filed September, 1894.)

    1. Attorney and client—Lien.
    The costs are the property of the attorney.
    2. Same.
    An attorney’s lien for compensation attaches to the judgment in the hands of an assignee for value without notice ; afortiore, if there is such notice.
    3» Same.
    A collusive satisfaction of the judgment will be set aside in favor of the attorney’s lien.
    4. Same.
    On a motion to set aside such satisfaction, the court may, upon evidence, determine the extent of such lien, and set aside the satisfaction to that amount.
    5. Same.
    In such proceeding, neither the judgment debtor nor an assignee of the judgment can impeach it, for lack of authority to, prosecute the action in which the judgment was obtained.

      J. Wamsley, for motion ; Smith and Dougherty, contra.
   Pryor, J.

In action for personal injury, the plaintiff had judgment for damages and costs; an assignee of the judgment has given a formal satisfaction of it; and now plaintiff’s attorney-moves to set aside the satisfaction, on the ground that it is in fraud of his lien.

By contract with the client the attorney was to receive, in compensation of his services, one-third of the damages recovered. Notice of the agreement was communicated to the defendant with the service'of the summons. The judgment is for $250 damages' and $174 76 costs. The attorney has been paid no part of his fee or costs ; and it is conceded that the client is irresponsible.

The assignee resists the application to vacate the satisfaction on the ground, among others,'that the prosecution of the action was without the authority, and, indeed, against the will of .the plaintiff. I do not so find the fact. But, in any event, the client suffered the case to go to judgment without challenging the authority of the attorney : and it is now too late to impeach .the judgment for that infirmity. Moreover, the assignee claims to be owner of the judgment for value ; and the defendant asserts that he has given value for its satisfaction; how then can either he heard to say that it is invalid ? Any question as to its validity is beside tbe scope of the present controversy, Whittaker v. N. Y. & H. R. R. Co., 18 Abb. N. C. 11, 18, which is, whether the satisfaction shall prevail against the attorney's lien.

From the principle that an assignee of a judgment takes subject to equities, and acquires no better right than has his assignor, Gates v. De La Mare, 49 St. Rep. 775; 20 N. Y. Supp., 837, and from the express provision of the Code, § 66, that an attorney’s lien attaches to the judgment “ in whosesoever hands,” it results that the attorney is not barred of relief even by a transfer for value without notice and a bona fide satisfaction of the judgment. I do not concede, however, that the assignment by the plaintiff, the employee of defendant, to the defendant’s son was in good faith; on the contrary, I conclude, from the facts before me, that the assignment and the satisfaction both were made with knowledge of the attorney’s lien and collusively with intent to defraud him of his compensation.

It follows, therefore, that the satisfaction must be vacated and the attorney’s lien enforced to the extent of his rightful claim. Bailey v. Murphy, 136 N. Y. 50; 49 St. Rep. 82; Poole v. Belcha, 131 N. Y. 200; 42 St. Rep. 856; Ward v. Wordsworth, 1 E. D. Smith, 598. That claim is not in controversy. The attorney is entitled to the costs by legal right, Marshall v. Meech, 51 N. Y. 140; Matter of Bailey, 31 Hun, 608; People ex rel. Reynolds v. Common Council, 7 Misc. 386; 57 St. Rep. 525; Adams v. Stillman, 4 Misc. 259; 53 St. Rep. 180; and here the amount of his lee is fixed, by express agreement with the client, at a fair and equitable sum. To ascertain on this motion the extent of the attorney’s lien is not an arbitrary determination, within the ruling in Bailey v. Murphy, 136 N. Y. 50; 49 St. Rep. 82, but is an adjudication upon evidence in an appropriate proceeding. Whittaker v. N. Y. & H. R. R. Co., 18 Abb. N. C. 11.

Let an order be entered vacating and setting aside the satisfaction of judgment to the extent of the attorney’s just demand, namely, $258.09, the aggregate sum of his costs and interest in the damages, with $10 costs of motion.


text:
    George H. Robinson, Pl’ff, v. Thomas F. Gilroy et al., as Commissioners, etc., Def’ts.

      (New York Common Pleas, Special Term,

      Filed July, 1894.)

    1. Commissioners of sinking fund—Ferry—Sale of franchise.
    The courts will not interfere with the exercise of the administrative discretion of the commissioners of the sinking fund of the city of’Ñew York, in tlie absence of had faith.

      2. Same—-Presumption.
    The presumption is that they have acted, and are acting, in good faith.
    Motion to continue an injunction restraining the sale of the Staten Island and Bay Ridge ferry franchises pendente lite.

    Action by a tax payer, brought pursuant to the provisions of § 1, chap. 301, of the Laws of 1892, to restrain the commission of an alleged illegal official act, and to prevent threatened waste of, or injury to, the property, funds or estate of the municipality of the city of New York.

      Geo. M. Pinney, for pl’ff; William H. Clark, counsel to the corporation (Chas. Blandy and B. J. Freedman, of counsel), for def’ts.
   Bischoff, J.

The defendants, as commissioners of the sinking fund of the city of New York, have offered for sale to the highest bidder above the minimum or upset price of five per centum of the gross receipts to accrue to the lessees, but in no event at less than the annual rental in the sum specified, in each instance, two certain franchises for the operation of ferries from the foot of Whitehall street, in the city of New York, one to Staten Island, the other to Bay Ridge, upon leases which in terms fix a maximum rate of ferriage for each passenger to be charged by the lessees, but which omit to mention a minimum rate. This sale of the franchises the plaintiff seeks to enjoin on the ground" that, if permitted, it involves the commission of an illegal official act, and will result in a waste of, or injury to, the property of the municipality.

The specific objection which the plaintiff makes to the proposed sale is founded upon his apprehension that, unless the terms of sale and proposed leases also impose a minimum rate of , ferriage for each passenger, certain railway corporations — the Staten Island Rapid Transit Company, the terminus of whose railway is contiguous to the landing of the Staten Island Ferry at St. George, and the Sea Beach Railway, and the New York, Brooklyn and Manhattan Beach Railway, whose termini are contiguous to the Bay Ridge Ferry landing at Bay Ridge—may, if they should acquire the use of the ferry franchises, operate them as adjuncts to their respective railways, and then, by pro-rating a joint charge for ferriage and railway fare to and from any particular point, so depress the ferriage receipts that, notwithstanding the railway, companies’ covenants to pay a greater percentage of the gross receipts for the use of the ferry franchises than is bid at the sale thereof by every other competitor, they may never become obligated to pay more than the fixed minimum annual rental. That they are enabled to so pro-rate the fares, the plaintiff argues, gives the railway companies such an advantage over others who, under different conditions, are likely to compete for the franchises at the sale thereof, that the latter are deterred; and hence, that the municipality will not, if the sale upon the terms as proposed is permitted, realize as much as it would if a minimum rate of ferriage were prescribed. A minimum rate of ferriage, if required, will, as the plaintiff contends, create equality among all who desire to compete, and so necessarily redound to the advantage of the municipality.

For the defendants it is not disputed that the railway companies named would, as lessees under the proposed leases, be anabled to pro-rate a joint ferry and railway fare with the result apprehended by the plaintiff, but it sufficiently appears that, after thoughtful consideration, the defendants have deemed it unwise to prescribe a minimum rate of ferriage, in that respect following the precedent made by their predecessors in office, thus leaving it to the discretion of the lessees of the franchises to reduce the ferriage for the public benefit, and whenever the lessees find it compatible with their interest so to do. To guard against any loss to the municipality from any system of pro-rating the fares, should the ferries be operated by the lessees of the franchises in connection with other enterprises or means of transit, the defendants have fixed the minimum annual rental at an amount which is in excess of -the percentage upon the estimated gross receipts of ferriage which have accrued to the railway companies respectively from the operation of the ferries during any one year in the past. This, the defendants contend, is all that was deemed feasible by them in the exercise of a sound administrative discretion.

Upon the facts presented I am unable, upon due reflection, to arrive at the conclusion that the proposed sale is illegal. It is conceded that the defendants have lawful authority to sell the franchises, but, the plaintiff contends, they are required to sell to the highest bidder at the highest market price, and the proposed sale is illegal because, unless the railway companies named are deprived of their alleged advantage over other possible competitors the highest market price is impossible of attainment. Any advantage, however, which the railway companies have arises from the fact that they have control of railways whose termini are contiguous to the ferries, and is therefore wholly adventitious, as much so as if among the possible competitors there are some who, because of their control of cheaper motors or means of propulsion are enabled to operate the ferries at less cost to themselves than others can operate them. Over such extrinsic advantages it seems impracticable for the defendants to exercise control without unjust discrimination against the possessors of them, and without want of proper consideration in other respects. The terms of the proposed sale and leases apply to all persons alike, and the defendants cannot reasonably be expected to anticipate every extrinsic advantage of some possible competitors over others and to discriminate against the former. If, because of the contiguity of the termini of the railways to the ferries, the railway companies are enabled to operate the ferries, as adjuncts to their means of further transit, so there may be among the possible competitors for the ferry franchises some who desire to operate the ferries in connection with other enterprises or means of transit. Hence' the apprehension of a possible loss to the municipality from a pro-rating of the fares, and the advantage of such a procedure to the ferry operators, is not to be confined to the railway companies named,.as lessees of the franchises.

Whether or not the possibility of loss to the municipality can be avoided by the adoption of a minimum rate qí ferriage, as suggested by the plaintiff, seems to be a question solvable only by experience and to be better addressed to the particular man of affairs than to the lawyer or judge as such respectively. On this motion we are concerned only with the good faith of the defendants. To charge the defendants successfully with attempted waste of, or injury to tbe property of the municipality, it is not enough that there is an honest difference of opinion respecting the manner in which the interests of the municipality may be best subserved. The bad faith of the defendants must appear. In the absence of bad faith their acts, if within their lawful authority, must be deemed to be within the exercise of the discretion given them as administrative officers. The defendants lawfully designated as sinking fund commissioners, are to administer the- affairs committed to them, and it devolves upon them to exercise a discretion in the management of those affairs. Such discretion is not to be interfered with by the courts unless it is in excess of authority or its exercise is for ulterior purposes; Any other course--would require the courts to usurp the powers of municipal government. Others may differ from the defendants respecting the practical execution of their trust, but because they do so, it does not necessarily follow that the defendants have acted, or are acting, in bad faith.

That the defendants, in fixing the terms of the proposed sale and leases of the ferry franchises, have acted in bad faith is an unwarranted inference from the facts which appear on this motion. If the railway companies named have an advantage over other possible competitors it seems wholly accidental. It is conjectural only, therefore, to urge that the defendants have manifested favoritism for the railway companies and thus been derelict in the proper performance of tlieir duties. It is, of course, neither impossible nor improbable that the defendants have erred respecting the best interests of the municipality in fixing the terms of the proposed sale, but, if so, the error appears to be one committed in the proper exercise of their administrative discretion and is characterized by their utmost good faith. The maintenance of the ferry franchises as valuable ones is a proper factor for consideration in disposing of them. It is not improbable that this may only be accomplished if the ferries are successfully operated, and it is fitting therefore that some discretion should be left to those who undertake to operate them, particularly so, if the public are to be attracted to the use of the ferries, with regard to the ferriage to be exacted. A fixed rate of ferriage may prove disastrous to success, though success could be insured by a lesser rate, and the operators may find it compatible with their interests to extend it. Besides, is it not plausible to apprehend that a fixed rate of ferriage would be more advantageous to the railway companies named than to others who may desire to acquire the use of the ferry franchises, because the former could, by means of their railways, offer greater inducements to the public? Next, the exaction of excessive or rigid terms may operate prohibitively upon the railway companies,' the termini of whose railways are contiguous to the ferries^and it is as much for the interests of the municipality that they should compete for the franchises as it is that others do so. It is to be questioned that the ferries have, in connection with the railways, enhanced in value and now yield to the municipality a much larger return than they otherwise would, because by means of the railways the ferry passengers are afforded the facilities of access to the remoter parts of Staten Island, and Long Island ? It is reasonable, therefore, to apprehend a loss to the municipality from the railway companies’ refusal to operate the ferries as from any system of pro-rating the fares which they may adopt in connection with the railways. Lastly, even the means which the plaintiff suggests as a cure for the apprehended evil can only be effective to a degree, for, if a minimum rate of ferriage is prescribed, cannot the gross receipts of the ferries, if the latter are operated as adjuncts to means of further transit, be so depressed, by the same system of pro-rating joint fares, that the municipality is not likely to receive for the use of its franchises a percentage above the fixed minimum annual rental, upon anything but the gross receipts for ferriage apportioned at the minimum rates ?

The presumption is, as in other actions against public officers, that the defendants have acted, and are acting, in good faith, and this is not overcome by the evidence. With the exercise of the defendants’ administrative discretion, in the absence of bad faith, the courts cannot interfere. Morgan v. City of Binghamton, 102 N. Y. 500; 2 St. Rep. 449; Talcott v. City of Buffalo, 125 N. Y. 280; 84 St. Rep. 871; Ziegler v. Chapin, 126 N. Y. 342; 37 St. Rep. 490.

Motion to continue injunction denied, and preliminary injunction dissolved, with ten dollars costs.


author: Bischoee, J.

text:
    Peter Wilkins, Pl’ff, v. The Mayor, Aldermen and Common Council of the City of New York et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed September, 1894.)

    1. Municipal corporation—Taxpayer’s action.
    A municipal corporation, cannot be made a party in a taxpayer’s action under chapter 301 1892.
    2. Same.
    Even independently of the statute,” a party not specially damnified or affected cannot, in such action, obtain an injunction against such a body.
    3. Same.
    Such an action is maintainable against the officers of a municipal corporation, only on proof of fraud or want of official power producing waste.
    4. Same—Ultra vires.
    The plea of ultra vires will not be entertained in the case of an executed contract.
    Motion to have a preliminary injunction continued pendente lite.

    Action by a resident taxpayer in the city of New York, pursuant to the provisions of § 1, chapter 801, of the Laws of 1892, for injunctive relief against the contemplated sale of a ferry franchise, and lease of the wharf .property connected with the operation thereof, upon the grounds that such sale, if permitted, will involve the performance of an illegal official act on the part of the defendants, and result in a waste of, or injury to, the property of the municipality.

      James A. Dennison, for pl’ff; William H, Clark, counsel to the corporation (Charles Blandy and K J. Freedman, of counsel), for def’ts.
   Bischoee, J.

On the argument of this motion the plaintiff asked for leave to amend his complaint by adding thereto an allegation to the effect that within the year immediately preceding the commencement of the action he paid a tax upon an assessment exceeding $1,000. Such an amendment is allowed, and thus the objection that the moving papers fail to show that the plaintiff is qualified, under the provisions of § 1, of chapter 301, of the Laws of 1892, to maintain this action is removed.

The action is brought to restrain the defendants from doing an act alleged to be in excess of authority and threatening a waste of, or injury to, the property of the defendant municipal corporation, the mayor, etc. It is instituted pursuant to the provisions of the section of the act above referred to which empower a taxpayer to prosecute and maintain an action against “all officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, * * * to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation.” The action is not authorized specifically against the county, town, village or municipal corporation, and the “ other persons ” against whom it may be brought are defined to be those “ acting or who have acted for and on behalf of any county, town, village or municipal corporation.” The language of the statute referred to, therefore, ex proprio vigore, excludes the county, town, village or municipal corporation as among the contemplated defendants! It does not appear that the plaintiff, either as a taxpayer or otherwise, will be specially damnified or affected by the acts sought to have restrained. Independently of statute authority, therefore, he is without a locus standi in this action so far as- it concerns the defendant municipal corporation, the mayor, etc., and aims to restrain or avoid the latter’s corporate act. Roosevelt v. Draper et al., 23 N. Y. 318; Starin v. Edson et al., 112 id. 206; 20 St. Rep. 898. As against the defendant, the mayor, etc., then the plaintiff can in no event succeed in this action. Hence, for that reason, injunctive relief against the same defendant should be denied.

As against the remaining defendants, a majority of the board of commissioners of the sinking fund of the defendant municipal corporation, the action is maintainable only upon proof that they have done, or are about to do some act the commission of which involves a waste of or injury to the corporate property, funds or estate, or the performance of some illegal official act. Evidence of like circumstances is therefore requisite to authorize the restraint of their official acts by interlocutory injunction. No act which is free from fraud or collusion, and which involves only the exercise of administrative-discretion on the part of a municipal officer, will or can be restrained. Talcott v. City of Buffalo, 125 N. Y. 280; 34 St. Rep. 871; Ziegler v. Chapin et al., 126 N. Y. 342; 37 St. Rep. 490. The defendants are not arraigned upon any accusation which impugns their personal or official integrity. What then are the facts on which the plaintiff predicates his claim to injunctive relief against the defendant Sinking Fund Commissioners ?

In August, 1888, the Staten Island Rapid Transit Company was the lessee from the Mayor, etc., of the ferry plying between the city of New York, at the foot of Whitehall street, and Staten Island, under a lease of which there then remained about five years unexpired. On the 4th day of August, 1888, the Mayor, etc., and the Staten Island Rapid Transit Company entered into an agreement, in writing and under seal, whereby the latter corporation undertook to make extensive and valuable improvements, which were to be of a permanent character, and had been previously authorized by the board of commissioners of the sinking fund, upon the wharf property of the former which was used in connection with the operation of the ferry franchise, and which improvements were designed to promote the convenience of the traveling public. By the same agreement it was, among other things, mutually covenanted that upon the expiration of the then existing lease of the ferry franchise and accompanying wharf property the mayor, etc., would pay, or caused to be paid, to the Staten Island -Rapid Transit Company the value of the improvements, which was to be ascertained by arbitration in case of a disagreement respecting it, unless the Staten Island Rapid Transit Company should upon the next sale of the franchise and lease of the wharf property succeed itself as purchaser and lessee, in which event, upon the expiration of the lease pursuant to such sale, as well as in case of the forfeiture of such lease by breach of its conditions, the improvements were to be„and become the property of the mayor, etc., without any payment whatever therefor. A further provision of the agreement was to the effect that upon the next sale of the ferry franchise and lease of the accompanying wharf property the mayor, etc., would cause' to be inserted among the terms of the sale a provision to the effect that if the purchaser and lessee should be a person or persons other than the Staten Island Rapid Transit Company it would pay, or cause to be paid, to said transit company the value of the improvements to the wharf property, which were made by the latter, pursuant to the said agreement of August 4, 1888.

In Í893 the lease of the ferry franchise and wharf property existing at the time of the agreement of August 4, 1888, expired, and the value of the improvements made by the Staten Island Rapid Transit Company was thereupon fixed by agreement, and without resort to arbitration, at $175,000, which sum was considerably less than cost. A notice of the sale on May 16, 1894, of the ferry franchise to the highest bidder above the upset annual sum of $22,500.00, with the lease of the accompanying wharf property at the annual rental of $21,500.00, was thereupon published by the defendants, acting as a majority of the Board of Commissioners of the Sinking Fund, and among the terms of sale specified in the notice was one pursuant to which a purchaser and lessee, if other than the Staten Island Rapid Transit Company, was required to pay the latter corporation the sum of $175,000.00 for its improvements as a condition of his being let into possession. By the preliminary injunction granted herein the contemplated sale was suspended and the plaintiff now asks to have it permanently enjoined. The particular objections to tho sale as proposed by the Sinking Fund Commissioners which the plaintiff urges in support of his claim to injunctive relief are that because the covenant of the Mayor, etc., in the agreement of August 4th, 1888, to pay for the improvements to be made by the Staten Island Rapid Transit Company is ultra vires and unenforceable, the imposition of such payment as a condition of the sale is wholly arbitrary and unauthorized ; that the threatened exaction of such promise of payment from a purchaser and lessee other than the Staten Island Rapid Transit Company operates as an unjust discrimination in favor of the last mentioned corporation- and hence, that the threatened exaction of the promise is destructive of that fair competition among intending purchasers and lessees which would rebound to the benefit of the Mayor, etc., in securing the greatest obtainable sum above the upset price.

I am unable, after careful consideration of all the facts, and of the brief submitted by the learned counsel for the plaintiff, to accede to the validity of the plaintiff’s contentions. That the Board of Commissioners of the Sinking Fund of the defendant municipal corporation is authorized and lawfully charged with the duty to dispose of its ferry franchise to the highest bidder, and to let to the purchaser the wharf property connected with and necessary to its operation, is unquestionable, Starin v. Edson et al., 112 N. Y. 206; 20 St. Rep. 898, and assuming that the agreement of August 4th, 1888. was at its inception, and while it remained wholly ex-ecutory, ultra vires, and therefore unenforceable against the municipality because in excess of its lawful authority to incur'an indebtedness, it remains that the agreement was fully performed on the part of the Staten Island Rapid Transit Company, such performance in reliance upon the promise to indemnify the latter corporation having resulted in the defendant municipal corporation’s gain of valuable improvements to its wharf property. Under such circumstances a plea of ultra vires must be regarded as inequitable, and would be unavailable to the defendant municipal corporation as a defense to the Staten Island Rapid Transit Company’s demand for payment of the value of its improvements. Whitney Arms Co. v. Barlow, 62 N. Y. 62; Rider Life Raft Co. v. Roach, 97 N. Y. 378; Starin v. Edson et al. 112 N.Y. 206; 20 St. Rep. 898; Mayor, etc. v. Sonneborn, 113 N.Y. 423; 22 St. Rep. 988; Mayor, etc. v. Huntington, 114 N. Y. 631; 23 St. Rep. 912; City of Buffalo v. Balcom, 134 N. Y. 532; 47 St. Rep. 907.

Regarding the defendant municipal corporation’s obligation to indemnify the Staten Island Rapid Transit Company to the extent of the value of its improvements to the former’s wharf property as indisputable, if the latter corporation should not succeed itself as purchaser of the franchise and lessee of the wharf property, it seems to me but the exercise of administrative discretion on the part of the officers of the municipality, upon the sale of the franchise and lease of the property, to secure the municipality against the consequences of its obligation by requiring the purchaser to relieve it therefrom so long as such a requirement does not operate to destroy fair competition upon the sale and so prevent the obtaining of the highest possible purchase price for the franchise. That sucli cannot be the result from the requirement that a purchaser and lessee other than the Staten Island Rapid Transit Company shall pay to the last mentioned corporation the value of its improvements is manifest from the further provision of the agreement of August 4th, 1888, that if the Staten Island Rapid Transit Company shall succeed itself as purchaser of the franchise and lessee of the property, the improvements, upon the expiration of its further lease, shall be and become the property of the Mayor, etc., without payment therefor of any sum whatsoever. Instead of being a discrimination in favor of the Staten Island Rapid Transit Company, the requirements tend rather to the creation of an equality among all who are likely to bid upon the sale, If the Staten Island Rapid Transit Company succeeds as purchaser and lessee, it forfeits its claim against the municipality for $175,000, the value of the improvements made. If another than the Staten Island Rapid Transit Company is the purchaser and lessee, he must pay the same amount while he has the like advantage of the use of the improvements during the term of his lease. In either event, however, the municipality acquires the improvements, without expense to it.

• Motion for continuance of the injunction denied, and preliminary injunction dissolved, with $10 costs.


author: Cullen, J. Brown, P. J.

text:
    George L. Simpson, Resp’t, v. New York Rubber Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Master and servant—Dan&erotjs machinery—Waiver.
    An employe in a factory cannot waive the protection afforded by chap. 673 of 1892.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      M. II. Hirschberg, for app’lt; William D. Diclcey, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff, entered upon the verdict of a jury. 'The action is to recover damages for personal injuries. The plaintiff was in the employ of the defendant, and had worked in its factory for some two years before the occurrence of the accident. On the occasion of that accident, while moving a truck, he slipped and fell, and his hand and arm were caught in some cog gearing, and so injured as to necessitate partial amputation. The action is based upon the statute requiring cogs, gearing, etc., to be properly guarded. Laws-1892, ch, 678. The questions of the negligence of the plaintiff, whether he was properly passing the machinery at the time of the injury, and whether the machinery was properly guarded, were submitted to the jury. The instructions on these questions were correct, and, as we interpret the rather colloquial discussion between the court and counsel at the end of the formal charge, the defendant has no cause of complaint as to them. The serious question in the case is the waiver by the plaintiff of the requirements of the statute. The learned judge was asked to charge that, if the defendant failed to properly guard the shaft and cog wheel, and the plaintiff knew it, and still continued in defendant’s employ, he waived the provision of the statute in that regard, and assumed such obvious risks as were incident to the use of the machinery in that condition. This request and refusal fairly raises the question. The general rule settled by authority is: “A servant accepts the service subject to the risks incident to it, and where, when he enters into the employment, the machinery and implements used in the master’s business are of a certain kind and condition, and the servant knows it, he voluntarily assumes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards.” Sweeney v. B. & J. Envelope Co., 101 N. Y. 520. But the question presented in this case is a different one. The state has enacted that certain safeguards shall be had for the securities of employes of the factory. The failure to provide these statutory safeguards is criminal. It is doubtless true that parties can waive statutory provisions for their benefit, and can even make law for themselves which the courts are bound to administer, provided there is no question of public policy involved. In re New York, L. & W. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831. But is there no question of public policy involved here? To our mind there is, and that public policy should induce us to hold, unless a contrary doctrinéis settled by authority, that this statutory protection cannot be waived. Our notion of government has confined state interference with the freedom of individual action within narrow limits, but such interference has never been wholl v prohibited. Experience has shown that in some matters persons must be protected from their own imprudence. If there were to be considered only the interest of the individual in his personal security, the statute would be unnecessary. The end sought to be accomplished could equally well be secured by contract between the employer and the employe. The matter has always been a subject of contract; that is, no law has ever-forbidden employes making the guarding of machinery a condition of their service. Yet such contracts are unknown. If, therefore, assent can dispense with the statutory protection, the subject, for practical purposes, is left in the same condition as it was before the enactment of the statute. But the state has great interest in the protection of its members, and this even of the most utilitarian character. In the case of a inained employee, he and his family are likely to become a public charge. The saméis true of the family of an employee killed. The community would seem to have as much interest in the protection of the life and limbs of a member of it as in the question whether he should pay 8 per cent, or 6 per cent, interest. Yet by no means which human wit can devise can he make a valid contract to pay more than 6 per cent, in this state. The doctrine of waiver or contributory negligence under this statute is but the equivalent of the contention in pari delictu under the usury statute—a claim always repudiated by the courts. We admit that the terms of the usury law differ from those of the statute under consideration. But the present form of the usury law is simply the result of a long strife between the legislature and the courts, the latter trying to' avoid the effect of the legislation—a strife in which the legislature eventually proved victorious. Nor is the legislation under discussion anomalous. At the present time there seems to be a tendency to reaction in the doctrine of noninterference. Within a few years the state has prescribed the prices to be charged for elevating grain in the port of New York by private individuals who possess no franchises nor even special facilities for the business. Yet this legislation is valid both by the court of appeals and by the supreme court of the United States. People v. Budd, 117 N. Y. 1; 26 St. Rep. 533; id., 143 U. S. 517. The claim that the question is settled by authority adversely to these views is based on the case of Freeman v. Glens Falls Paper Mill Co., 70 Hun, 530; 53 St. Rep. 786; affirmed without opinion, court of appeals April, 1894, 60 St. Rep. 865. The effect of such affirmance is stated by Judge Finch to make the court “responsible only for the point decided, not guarantors of the reasons given or opinions expressed.” Rogers v. Decker, 131 N. Y. 490; 43 St. Rep. 781. In the case cited from Iluti the action was for negligence, and not based on the statute. The question here was, therefore, not necessarily involved. So far as we have any intimations from the court of appeals on the question, they are adverse to the contention that the statute can be waived. In White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312, referring to this statute, Judge Earl says: “It is not always true that the absence of guards about the machinery in such a case, provided the boy knew it, can have any bearing on the liability of the employer.” In Purdy v. R. W. & O. R. R. Co., 125 N. Y. 209; 34 St. Rep. 737, an agreement in advance, releasing the defendant (master) from damage for every cause, was held void, as without consideration; the simple continuance of employment being held insufficient to support it. The distinguished judge who wrote the opinion intimated grave doubts whether such an agreement was not void as against public policy. That view is the one uniformly adopted at circuit in this district, so far as we know. The same public policy which would render such an agreement void would seem also to avoid an agreement to waive the protection of the statute here under consideration. The judgment appealed from, and. order denying new trial, should be affirmed, with costs.

Dykman, J., concurs in the result.

Brown, P. J.

(concurring).'—J concur in the affirmance of the judgment in this case, but I do not now agree to the proposition that an employee cannot waive the provisions of the statute which requires owners of manufacturing establishments to properly guard all machinery, so far as the statute may be treated as having been enacted for the employe’s benefit and protection. Whether the plaintiff had waived the benefit of the statute was, upon the trial, treated by the court and counsel as a question of law. No request was made to have the question of waiver submitted to the jury. It is true the court refused to charge that, if the plaintiff waived the provision of the statute, he could not recover; but as it had correctly ruled that there was no waiver in law, and as there was no request to submit the question to the jury, there was no error in its refusal to • charge as requested-The rule .applied by Justice Cullen excludes waiver by express stipulation as well as that arising from the continued use by the employee of improperly guarded machinery. It is not raised in this case by any appropriate exception, and, while it may be that the views expressed are correct, I prefer to withhold my opinion until the question is directly presented, and has been fully argued. The ruling of the court that the plaintiff could not, upon the facts presented, be deemed to have waived the benefit of the statute, is directly sustained by Knisley v. Pratt, 75 Hun, 323; 58 St. Rep. 213; and Freeman v. Glens Falls Paper Mill Co., 61 Hun, 125; 39 St. Rep. 621, and is in harmony with the remarks of Judge Earl in White v. Witteman Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312. There is nothing in the second report of Freeman’s Case, 70, Hun, 530; 53 St. Rep. 786; affirmed in court of. appeals without opinion in April, 1894, 60 St. Rep. 865, that necessarily conflicts with these authorities. Upon the facts found by the jury upon the second trial the plaintiff was guilty of contributory negligence, and, as the judgment is sustained by that fact, we cannot assume that the court of appeals approved of the views expressed in the general term opinion. The judgment must be affirmed.


author: Dykman, J.

text:
    David F. Wright, App’lt, v. Robert Bowne, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed June, 1894.)

    Motions and Orders—Irregular notice.
    Court is not deprived of jurisdiction by the fact that the motion is noticed for one, and the order purports to be made at another, place.
    Appeal from an order, made and entered in the office of the clerk of the county of Kings, modifying an order made at the Kings County special term, granting the plaintiff’s motion for an order compelling the defendant to accept service of the plaintiff’s demurrer to a portion of the defendant’s answer, by striking there- ■ from the words “The plaintiff to have $10, costs of this motion to abide the event of action,’’ and vacating an order, denying the defendant’s motion to resettle the order made the 21st day of October, 1898.

      Henry L. Brant, for app’lt; Charles Strauss, for resp’t.
   Dykman, J.

This is an appeal from an order modifying a previous order and vacating another,-both of which had been made by the same judge.

The last order seems to be just and the objection to it is technical only.

While it is true that the motion was noticed for argument at Schenectady, yet the order purports to have been made at Brooklyn.

While the notice was irregular it cannot be said that the court has no jurisdiction.

Besides the notice can scarcely be said to be a notice of motion before a court. It was a notice that an argument would be made in writing before a justice of the court to vacate one order previously made by him and modify another.

The order should be affirmed, without costs.

Brown, P. J., and Cullen, J., concur.

Order affirmed, with costs.