author: Merwin, J.

text:
    Isaac J. Squire, Resp’t, v. Silas S. Cartwright, President, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Villages — Taxes.
    The defendants, village trustees, passed a resolution, October 11. 1890, that a tax be levied of $621; $300 to pay for fire hose, $125 to pay for water rent, under a contract made May 13, 1890, $75 for water rent under a later contract, and $121 for lighting streets, etc. The annual meeting of the village was held in March, and these items were not in the statement furnished by the trustees to that meeting. Held, that the trustees had no authority, under chap. 291, Laws of 1870, for levying a special tax for the items of $300, $125 and $121. .
    2. Same.
    Although a special tax for the item of $75 might be valid, the fact that the other items were improperly included in the special tax would make it invalid.
    3. Same — Contbact.
    The fact that the electors of a village in town meeting refuse to authorize a contract made by their trustees does not prevent them from again acting on the subject and adopting the contract, which should be treated as in force and valid from such time.
    Appeal from a judgment, entered in Delaware countjr, on 6th August, 1892, upon the decision of the Delaware special term. By the judgment the defendants are forever enjoined and restrained from enforcing the tax warrant issued by the defendants, the president and trustees of the village of Roxbury, on or-about the 11th October, 1890, and from collecting the tax thereby sought to be collected, and from applying any of the moneys collected upon such tax warrant for the purposes specified in the resolution under which the tax was levied. The plaintiff is a taxpayer of the village of Roxbury; the president and trustees of the village and the collector are defendants, and also the Roxbury Village Water Company. The action is brought under the provisions of chap. 673 of the Laws of 1887.
    The resolution, in pursuance of which the tax warrant in question was issued, was passed at an adjourned meeting of the board of trustees, held on October 11, 1890, and is as follows:
    “ Resolved, That a tax be levied on the taxable property of the incorporated village of Roxbury, New York, for the sum of six hundred and twenty-one 54-100 dollars ($621 54-100) of which $300 is to pay for 500 feet of fire hose$200 of which is to pay for the first six months water rent, and the balance, $121 54.100, is to pay for lighting streets, and other necessary expenses.”
    The warrant was soon thereafter delivered to the defendant, the collector of the village, and this action was commenced on or about November 13, 1890.
    The annual meeting of the village for the year 1890 was held on the 18th day of March. Thereafter and on June 7, 1890, the defendants, the president and trustees of the village, caused to be made the annual tax levy in and upon the taxable property and inhabitants of the village for the year 1890, for the sum of $525, which was the full amount proposed to be raised and stated in the detailed statement presented to the annual meeting as required by law. None of the items in the resolution of OotobeV 11 were in this statement.
    On the 13th May, 1890, the president and trustees in behalf of the village entered into a contract with the Roxbury Village Water Company, by which the village leased from the water company for the term of five years the use of ten hydrants for fire purposes only, at an annual rental of $250 payable in semi-annual payments, the hydrants to be put in.the streets at such places as the trustees may direct wherever the water pipes are laid, the five years to begin and date from the day the hydrants are ready for use and the rent to commence and accrue from that date. The company among other things agreed that the hydrants should be ready for use within one year from the date of the contract.
    On the 28th July, 1890, the trustees called a special election of the electors of the village for August 9, 1890, to vote upon a resolution passed by the board of trustees authorizing a contract with the water company for ten additional hydrants at an annual rental of fifteen dollars each. This election was held and the resolution defeated.
    On the 15th August, 1890, the board of trustees unanimously passed a resolution to make a contract with the water company for the rental of eleven additional hydrants for the term of three years, ten of them at an annual rental of fifteen dollars each and the other free for the first year and the next two years at the rate of twenty dollars a year, the rental to-begin when the hydrants were ready for use. This resolution is by its terms “ pursuant to = the provisions of an act passed by the legislature of New York, June 2, 1887.” A contract was accordingly made with the water company dated August 15, 1890, and by it the rental is made payable semi-annually in advance.

      The item of $200 for rent in the resolution of October 11, 1890, is the rental under these contracts for the first six months. The hydrants were ready for use on November 1, 1890, and they were accepted by the trustees and have since been in use by the village.
    It does not appear when the hose, referred to in the resolution of October 11, was purchased, but it is found that it and also the additional hydrants were necessary for the proper protection of the village from fires.
    After this suit was commenced, and on the 14th September, 1891, in pursuance of notice given by the board of trustees, a special election was held, at which a resolution was passed, approving and confirming the act of the board in making the contract of August 15, 1890, and authorizing the trustees to carry out the same, and levy in one sum and collect all necessary tax that may be required from time to time to fully meet the requirements of that contract; also a resolution affirming and approving the act of the board in issuing the warrant of October 11, 1890, and in assessing and levying the amount therein named, and, in the event that the warrant should not be enforced, and the full amount thereof collected, authorizing the trustees to levy in one sum and collect the whole or any part thereof by re-levy. The fact of the passage of these resolutions was set up by supplemental answer.

      Wagner & Fisher, for app’lts; C. L. Andrus, for resp’t.
   Merwin, J.

-The questions in this case az'e, 1. Whether the board of trustees had any authority to levy the tax in question at the time it was levied, and if not, then, 2. Whether the tax has been made valid by any ratification, so as to affect the rights of the plaintiff.

Of the items making up the amount of the tax, the sum of $300 for hose, and the sum of $121.54 for lighting streets, azzd other necessary expenses, were within the class of ordinary expenditures as defined by the statute applicable to the village. Chapter 291 of the Laws of 1870, title 4, § 2. The annual meeting of the village was on March 18, 1890; and those items were not in the statement furnished by the trustees to that meeting. The statute, § 11, title 3 of the act above referred to, required that stateznent to contain “ the estimated ordinary expenditures of such village for the ensuing year, to meet which taxes may be lawfully raised.” In the assessment, which the trustees were re-quiz-ed to make withizz sixty days after the annual meeting, title 6, § 1, as azneizded by chapter 246 of the Laws ofTSSO, they could include “ such sum as they deem necessary, besides funds z-eceived and estimated to be received fi’om other sources, to defray the ordinazy expenditures of the village for the cuzrent year, not to exceed the aznount fixed for that purpose in the detailed statement the trustees presented at the annual meeting.” The amount which the trustees did fix in their statement was fully raised in the annual assessment and tax thereafter levied. We are shown no authority for the tz’ustees subsequently levying a special tax for other items of ordinaiy expendituz-es, unless the case is brought within the provisions of chapter 504 of the Laws of 1887, and that is not claimed with reference to these items. Very evidently the intent of the statute of 1870 was to limit the ordinary expenses for the current year to the amounts fixed by the trustees in their report to the village and to require all that was raised for that purpose to be raised in the annual tax.

Of the item of $200 for water rents, the sum of $125 was for six months water rent under the contract of May 13, 1890. It is conceded that this contract is valid under the provisions of § 5 of chapter 737 of the Laws of 1873, as amended by chapter 422 of 1885. It did not run for more than five years and the amount to be paid did not exceed the sum of two and one-half mills for every dollar of taxable property per annum. The taxable property was $103,590 and the annual rental was $250. That statute, however, provides that: “ The amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such village, and shall be levied, assessed and collected in the same manner as other expenses of such village are raised.” Very evidently the intention was to include the entire annual rental in the annual tax, and there was no authority to the trustees to divide it and raise a part in a special tax.

The balance of the $200 item was six months rent under the contract of August 15, 1890, and its consideration involves the validity of that contract. The defendants seek to justify it under the provisions of chapter 504 of the Laws of 1887. That act provides that, whenever it shall be desired by any village to raise moneys additional to the amount permitted to be raised by its charter or by the general law, for the purpose of building a bridge, constructing a sewer, or carrying out some other proper village object, the trustees may call a special election and submit the question of raising such moneys, and if there is a majority vote in favor of the matter, the trustees are authorized to raise the same, “ in the same manlier as other village taxes are raised and collected,” and the trustees in anticipation of the tax may temporarily borrow the amount and use it for the purpose desired. If, however, *• the amount desired to be raised for any of the purposes aforesaid shall not exceed in the aggregate the sum of five hundred dollars,” the trustees by an unanimous vote could proceed and raise the amount without submitting the question to the electors. By the second section of the act • it is provided that the powers conferred by the act are “ in addition and supplementary to and independent of all other powers possessed by villages, either under any special act or under the general act for the incorporation of villages.”

It is somewhat doubtful whether this act was intended to include a case like the present. There was here no temporary emergency. The moneys were only desired to be raised in order to perform the contract, so that the question of the validity of the contract would need to be determined before reaching the benefit of the act. Ooncededly the contract was not authorized by the act of 1873 above referred to, which regulates the manner in which such contracts should be made. Besides, the object sought to be accomplished was the obtaining of the use of the necessary hydrants for the protection of the village, and this included the hydrants of the first contract. It was all executory, none had yet been furnished by the water company.

The purpose was substantially a single one, and in order to ascértain whether the amount exceeded “in the aggregate” the sum of $500, and, therefore, beyond the power of the trustees, it may with considerable force be said that the amount of the first contract should be included. If so, the trustees could not act without submitting the question to the electors. Be this as it may, the fact that the other items were improperly included in the special tax would make the tax invalid. It was but one tax. See Welty on Assessments, § 232; Smith v. Cramer, 14 W. Dig., 107; Hassan v. City of Rochester, 67 N. Y., 529.

2. The effect of the confirmatory resolutions of September 14, 1891, remains to be considered. One of these assumed to confirm as an entirety the tax and warrant of October 11, 1890. Still, the electors could not, by way of ratification, do any more than they could have done at the time, and they, in October, 1890, had no right to say that certain items of expenditure might be raised by special tax, in violation of the provisions of the statute which required them to be raised, if at all, by the annual tax and after certain formalities. The language of Judge Denio, in Peterson v. Mayor, etc., 17 N. Y., 449, is applicable. At page 454, he says : “ No sort of ratification can make good an act without the scope of the corporate authority. So where the charter or a statute binding upon the corporation has committed a class of acts to particular officers or agents other than the general governing body, or where it has prescribed certain formalities as conditions to the performance of any description of corporate business, the proper functionaries must act, and the designated forms must be observed, and generally no act of recognition can supply a defect in these respects.”

Whether the electors could adopt the contract of August 15, 1890, is another question. They had refused to authorize it at the election, August 9, 1890. After that the hydrants were put in and were ready for use on November 1st, following, and from that time forward to the election in September, 1891, were used by the village, and presumptively their necessity was demonstrated. That being the situation, the fact of the refusal in August, 1890, should not prevent the electors from again acting upon the subject in September, 1891. In this view I think that the adoption in September, 1891, should be deemed operative, and that the contract should be treated in force and valid from that time. The statute of 1873, as to the approval by the electors, was substantially complied with. This, however, would not interfere with the rights of the plaintiff. The act of 1873 provided that the amount payable under such a contract should be annuall}' raised as other expenses of the village.

It follows that the special term was correct in restraining the collection of the special tax in question. It is, however, suggested by the appellants that the findings and judgment are sufficiently broad to prevent any future enforcement of the contract of August 15, 1890, as adopted in September, 1891. It is not clear that this is so, but to avoid any question upon the subject the judgment should be modified so as to be without prejudice to any proceeding taken as authorized by law to enforce that contract, based upon the adoption referred to, and as modified affirmed, with costs.

judgment modified as stated in the opinion, and, as modified, affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Riley V. Miller et al., Resp’ts, v. Thomas D. Jones et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

    1. Patents — Jurisdiction.
    In an action to set aside certain transfers of a patent, as in fraud of the plaintiffs' exclusive license, where the license was executed and delivered in this state, the parties then living here and the business to be carried on here, but the defendants residing in another state at the commencement of the action, Held, that the action affected the title of personal property within the state so as to give jurisdiction over a defendant served by publication under subdivision five of § 438 of the Code.
    2. Affidavits — Certificate of official character.
    The clerk’s certificate as to the official character of a foreign notary who had taken an affidavit of personal service of a summons without the state, stated that “he was duly commissioned, sworn and acting as such, and authorized to administer oaths.” An objection to its sufficiency was not raised by motion or on the trial. Held, that the defect in the certificate, if one existed, was such that it could be cured by producing on the appeal a, proper certificate.
    Appeal by the defendant, Mary E. Jones, from a judgment" entered in Onondaga county, March 30, 1892, upon the decision of the Onondaga special term, setting aside certain transfers of a patent.
    Also appeal by the defendants, Thomas D. Jones and The Jones Positive Nut Lock Company, from an order of the Onondaga special term, entered in Onondaga county on April 23, 1892, denying a motion to vacate and set aside the same judgment
    On the 31st May, 1889, the defendant, Thomas D. Jones, being the inventor and owner of a certain valuable device known as the “ Jones Safety Nut Lock,” and having previously in due form applied to the commissioner of patents for the issuing to him of letters patent, being about to receive such letters, entered into a contract in writing with the plaintiffs, bearing date May 31, 1889. In this contract, after a recital of the invention and the application for a patent and an examination by plaintiffs as to its value, and that they were desirous of entering upon the manufacture and sale of the same when .letters were issued to Jones, it was agreed by the plaintiffs that they would furnish all necessary machinery and capital for the manufacture and sale of the lock sufficient to fill all orders that they may receive and would proceed at once with the manufacture and sale and continue the same for and during the life of the patent They agreed to devote such time and attention to the manufacture and sale as should be necessary for the successful carrying on of the business, and they agreed to employ Jones as manager of the manufacturing, and to pay all bills contracted by him relating to said patent. And in case the plaintiffs did not perform all the covenants on their part to be performed, or in case they should abandon or fail to proceed with the manufacture and sale and refuse upon demand of Jones to proceed with the manufacture of the same, then the agreement should be void and Jones be at liberty to manufacture and sell the said lock and all things connected therewith to and with whom he should see fit, the same as if the agreement had not been made. The plaintiffs also agreed that they would not sell or in any manner dispose of or transfer their or either of their interest in said business, in whole or in part, without the written consent of. Jones, and he agreed that he would “ not sell or transfer or in any manner dispose of his interest in said business without their like consent,” and in case either, with the consent of the other, should sell or dispose of the same, it was agreed that the plaintiffs should receive one-third of the net proceeds of the sale and Jones two-thirds. Jones agreed to devote his time and attention to the manufacture of the lock, and to enter the employ of the plaintiffs, and to manage and oversee the manufacture of the same, and he also agreed that he would “ not allow or permit any person or persons, firm or firms, corporation or corporations, to manufacture said lock, but that the same shall be manufactured ■exclusively by the parties of the first part, and that he will in no manner be interested in the manufacture of it by or with any other persons. This covenant, however, is not to be so construed as to compel the party of the second part to bring actions to restrain parties from infringing on the same unless parties of the first parish all bear one-half of the expense of such action or actions.”
    The net profits, after deducting all expenses incurred by either relating to the business, were to be divided, one-third to the plaintiffs and two-thirds to Jones. If, for any reason, Jones was unable to attend to the duties of the business, he agreed to furnish some one to take his place and pay the expense thereof out of his share of the profits. All improvements made by Jones upon the lock were to be used by all the parties, and all patents in foreign countries, except in certain named countries, were to be used by the parties, and the proceeds relating to the same be divided in the ratio above stated.
    Letters patent were issued to Jones on November 12,1889, and the plaintiffs and Jones entered upon the performance of the contract at Syracuse, where the contract was executed and where all the parties resided. In the complaint it is alleged, among other things, that such manufacture continued down to February, 1891, and that plaintiffs invested therein $10,000, and upwards, over and above what they had received; that on 24th October, 1890, Thomas D. Jones, in fraud of the rights of the plaintiffs, executed and delivered to his wife, the defendant Mary E. Jones, an assignment of the said letters patent and all his interest therein, which assignment was recorded in the patent office January 15, 1891, and that Mrs. Jones had full notice of plaintiffs’ rights; that thereafter Thomas D. Jones went to Chicago and organized the corporation, The “ Jones Positive Nut Lock Company,” under the laws of the state of Illinois, and to this corporation Mrs. Jones, on the 10th March, 1891, assigned the patent; that all this was done with the intent to deprive the plaintiffs of their rights, and that Thomas D. is about to remove to Chicago and refuses to assist the plaintiffs in the business, and the new corporation is engaged in manufacturing the lock; that Thomas D. is the owner of 996 out of -1,000 shares of the stock and the plaintiffs are excluded from all interest therein ; that the corporation had knowledge of plaintiffs’ rights.
    The defendant Mary E. Jones is the only one who answers. Among other things she denies the fraud, and alleges that she took the assignment to secure her for advances made to her husband.
    By the judgment it is adjudged that the agreement of May 31, 1889, was intended to be and was an exclusive license vesting in the plaintiffs the sole and exclusive right to make, use and vend the patented article for the full term of the patent without any reservation to Jones except in case of non-fulfillment by plaintiffs of the terms and conditions of the agreement, and Jones had no right to assign the patent to Mrs. Jones or to the corporation; that the assignment to Mrs. Jones, and from her to the corporation, be set aside and vacated as in fraud of the rights of plaintiffs ; that Thomas D. Jones and the corporation be restrained from conveying the letters patent to any other person or corporation ; that the plaintiffs recover of Thomas D. Jones, Mary E. Jones and the said corporation the costs of the action.
    Upon the trial the defendants Thomas D. Jones and The Jones Positive Nut Lock Company appeared specially and objected to the rendering of any judgment against them, and after the judgment was entered they moved at special term to set it aside, the motion being based upon the judgment roll and the case and exceptions proposed in the case. The order appealed from is the one made denying this motion.

      Homer Weston, for app’lts; Ceylon H. Lewis and C. W. Smith, for resp’ts.
   Merwin, J.

The trial court, in substance, found that the plaintiffs had performed their part of the contract; that under it they were entitled to have the title of the patent remain in Thomas D. Jones, and that the transfers to Mrs. Jones and to the corporation were without the consent of plaintiffs, and were in violation of their rights. Mrs. Jones, appealing from the judgment, takes issue upon all these propositions. They are the main ones upon the merits.

The trial court was, I think, correct in its construction of the contract. Its plain object was to place in the two parties to the contract the entire beneficial interest in, the patent and its proceeds, except as to certain specified countries. The fact of this exception indicates the intent. The plaintiffs were likely to be called on for large expenditures, as security for which they had only the proceeds of the patent, or profits in sales. It would hardly be reasonable to suppose that either party then intended that the patentee could, whenever and on what terms he chose, dispose of any part or the whole of the patent, and thus practically deprive plaintiffs of their security.

Whether the plaintiffs had performed upon their part, and whether the transfers were without the consent of plaintiffs, and, therefore, in violation of the contract, were, upon the evidence, questions of fact, and upon those the conclusions of the trial court should not be disturbed. Some of the allegations in the complaint were quite general, but no objection upon this basis was made. There is no question about the right of a state court to set aside such assignments.

But it is claimed that the court had no jurisdiction to render the judgment by reason of the non-residence of the corporation and of .the defendant, Thomas D. Jones. No defense upon this basis is set up. Assuming, however, that the appellant is in a position to raise the question, the case shows that service of the summons and complaint was made upon the defendant, The Jones Positive Nut Lock Company, by service within the state upon the secretary of the company. This method of service is authorized by § 432 of the Code, and operates to give jurisdiction to the court, and it is not needful, in order to make the service effective, that the corporation should have any property within the state, or that the cause of action should have arisen therein. Pope v. Terre Haute Car M. Co., 87 N. Y., 137; Gibbs v. Queen Ins. Co., 63 id., 114. In the Pope case, it is said that a judgment against a corporation in an action so commenced will be valid for every purpose within this state. In the Gibbs case, it is said that such action and judgment should be general in character, not directed against any particular property. But it is suggested that the evidence does not show the legal existence óf the corporation, or that the person served was secretary. There is evidence that tends to show those facts, and it is found, upon the request of the appellant, that the corporation was in existence at the commencement of this action, and that after the organization of the corporation, Anderson, the person served, was elected secretary of the company.-

Thomas D. Jones was served by publication under § 438 et seq., and it is claimed that the service was insufficient to give jurisdiction because no attachment was issued, and the property to be affected was not, as the appellant claims, within the'state. The order for publication was made both under subdivision 1 and subdivision 5 of § 438. If made under subdivision 1, there would seem to be no requirement for an attachment except in case a judgment was sought for money only, § 1217 of Code, which is not this case. Assuming, however, that the order of publication can rest only upon subdivision 5, Von Hesse v. Mackaye, 55 Hun, 365; 29 St. Rep., 228; affirmed 121 N. Y., 694; 31 St. Rep., 994, the question is whether a case is presented that is fairly within that subdivision. That subdivision reads as follows : “ 5. Where the complaint demands judgment that the defendant be excluded from a vested or contingent interest in, or lien upon, specific real or personal property within the state; or that such an interest or lien in’" favor of either party be enforced, regulated, defined or limited; or otherwise affecting the title to such property.” The counsel for appellant says that “ while the complaint states a cause of action concerning specific personal property in this state, the proof for judgment merely fails to establish a cause of action.” The point I suppose is that under the evidence the property to be affected is not within the state.

It is to be observed that the subdivision is not limited to chattels, but the more extensive term is used, “ personal property.” The contract between plaintiffs and Jones, the construction of which was in issue as well as the rights of plaintiffs under it, was executed in this state, and all parties then lived here, and the business was to be carried on here. The assignments which were sought to be set aside were executed and delivered here. They so appear upon their face. The plaintiffs’ cause of action, therefore, accrued here. Where the patent, the instrument itself, was at the time does not appear, except it may be inferred that it was then at Syracuse, where the assignments were executed. Where it was when this suit was commenced does not appear. The patent itself was not the invention, but evidence that the party had under the law a monopoly. The right to use is property, Gillett v. Bate, 86 N. Y., 93, and in its character it is personal. The plaintiffs under their contract had a property right, and in its origin and use it was within this state. The title of this was affected by the transfers in controversy, and the judgment operated to clear their title from the clouds upon it. In a certain sense their contract was a lease to run during the life of the patent, and the suit and judgment were to remove impediments to the exercise by plaintiffs of their rights.

In view of the circumstances of this case, it should, I think, be held that the action affected the title of personal property within the state.

The counsel for the appellant claims error. in some rulings at the trial, but we find in them no sufficient ground for reversal. The appellant claimed a trial by jury, but clearly the suit was in equity, and no motion had been made to settle issues. The answer did not put at issue the existence of the corporation. Code, § 1776.

It follows that no sufficient ground for reversal of the judgment appears.

The appeal from the order brings up substantially the same question as to the validity of the service on Thomas D. Jones by publication. Nothing further need be said as to the validity of the order. A further question, however, is raised as to the sufficiency of the proof of service. After the order was made, the papers were served personally on Jones without the state. The affidavit of such service appears to have been made before a notary public. The appellants claim that the clerk’s certificate as to the official character of the notary was not sufficient to entitle the affidavit to be read, under § 844 of the Code. The section provides that an affidavit may be taken without the state “ before an officer authorized by the laws of the state to take and certify the acknowledgment and proof of deeds to be recorded in the state, and when certified by him to have been taken before him, and accompanied with the like certificates as to his official character and the genuineness of his signature as are required to entitle a deed acknowledged before him to be recorded within the state, may be used as if taken and certified in tins state by an officer authorized by law to take and certify the same.” The clerk’s certificate, in this case, instead of stating that the notary was authorized by the laws of the state to take and certify the acknowledgment and proof of deeds, stated that he “ was duly commissioned, sworn and acting as such, and authorized to administer oaths.” In other respects the certificate appears to be regular.

This objection, as the record shows, was not raised on the motion made by these defendants, or on the trial. If it had been, it might have been obviated. No suggestion was made that Mr. Jones had not in fact been served without the state. On the contrary, it is very apparent that all parties assumed that such service had been made, and the controversy was as to the sufficiency of such service, there being no attachment and the property not being, as the defendants claimed, within the state. The answer of Mrs. Jones was for the benefit of all the defendants, and was so stated by the attorney who appeared specially for them at the trial for the purpose of objecting to any judgment being rendered against them. The motion being made upon the case and exceptions as well as on the judgment roll, the whole case was before the special term upon making the order. The defect in the certificate, if one existed, was such that it could be cured by producing on the appeal a proper certificate. Jarvis v. Sewall, 40 Barb., 450.

I think the objection is not available. It follows that the order should be affirmed.

Judgment affirmed, with costs.

Order affirmed, with ten dollars costs and disbursements.

Bardin, P. J., and Martin, J., concur.


author: Barnard, P. J. Dykman, J.

text:
    Thomas O’Malley, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Negligence — Brakemen—Failure to obey rule to inspect brakes.
    A rule of a railroad company requiring brakemen to examine brake shafts and attachments must receive a reasonable construction and application. Where no time or opportunity is afforded for that purpose, no negligence can be imputed to the brakeman for a failure to comply "with such rule.
    2. Same.
    A car was added to a train which remained at the station for fifteen minutes thereafter waiting for another train whose arrival was uncertain. At the next station plaintiff was injured by the breaking of the brake attachments while setting the brake on said car. Held, that there was no opportunity given for inspection, and that plaintiff was therefore not guilty of negligence in failing to examine said attachments.

      Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Lewis K Carr, for app’lt; John M. Gardner, for resp’t.
   Barnard, P. J.

The neglect of the defendant was clearly proven. The plaintiff was a brakernan in the employ of the defendant. The defendant was bound to supply safe appliances for the purposes of the employment.

While applying a brake the guard snapped and threw the plaintiff under the car. The plaintiff was proven to be free from any neglect on his part. He was using the appliances in the usual way. The proof shows that it was in a weak condition by the absence of a bolt and the two remaining bolts so loose as to be unsafe. There was no opportunity to examine the brake before the accident on the occasion in question, and a rule to that effect must have a reasonable construction. Besides, there was no proof on the trial tending to show that the rule had not been in force as to brakemen who were called upon to apply brakes. It is manifest that it could not be observed by the employe without danger. The brakes must be applied at once when the order is given.

The judgment should be affirmed, with costs.

Dykman, J.

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

The plaintiff was a brakernan in the employ of the defendant, and on the morning of the accident went with a local freight train, upon which he was at work, from Newburgh to Turner's. He remained there with his train about one hour; while there a freight car was attached to the train to be taken back to Central Valley. It was coupled to the engine, and after that the train stood still, with the plaintiff standing by it, for ten or fifteen minutes waiting for another train.

When it started towards Central Valley it consisted of the engine, this car and a caboose, and when it reached there it stopped, the caboose was uncoupled, and the plaintiff went forward and climbed up on the end of this freight car nearest to the engine and gave the engineer the signal for moving back upon the switch. He then went to the rear end of the car where the brake was to apply it for the purpose of checking the movement as it was being backed in upon the switch. When he commenced to apply the brake he placed his right knee on the car and his left foot on the foot board, and when he applied his strength to the brake the guard snapped and threw him off his balance, and the foot board broke and he fell to the ground and the wheels of the car passed over his arm and foot, inflicting the injury for which this action was brought.

The brake staff came up the end of the car through the foot board, which was located a short distance below the top of the car, and was fastened to the roof by a strip of iron. On the foot board was a ratchet which fitted into the notches of a wheel on the staff, and the foot board was supported by braces underneath.

There was a crack in the foot board, and the supporting braces were loose, and the screws had so worn into the wood that they no longer held it firmly; the strap around the staff had an old crack partly through the iron.

The principal effort on the part of the defendant upon the trial was to convict the plaintiff of contributive negligence in this way.

There was a rule of the company which required freight brakemen to examine and know for themselves that brake shafts and attachments, and other attachments which they were required to use, were in safe and proper condition, and the insistence was that the plaintiff failed to fulfill the requirements of that rule, and so contributed to his disaster.

It did not fully appear that the plaintiff had seen the rule, but as it was accessible to him, and it was his duty to examine it, he must be charged with knowledge of its existence.

Yet the rule must receive a reasonable construction and application. If ample time and opportunity is afforded for the examination and inspection required by the rule it must be made, and the consequences of failure to do so must rest upon the delinquent. But where no time or opportunity is afforded, no negligence for failure can reasonably be imputed.

It may often happen that a car standing upon a side track at a way station is attached to a passing train to be drawn to the next or another station, and that such attachment is made in haste with no time for examination, and in such a case it would be unreasonable to hold any trainman responsible for failure to inspect.

We think this is such a case. The car was attached but a few moments before the train was to move on for Newburgh. The delay in starting was caused by the necessity of waiting for another train, and it was uncertain how long it would continue. The train might start at any moment, and for that reason it would have been dangerous to go under or around the car to inspect it. The defects were not so open and visible as to be detected by a glance of the eye. Their discovery would have required scrutiny, and for that there was no opportunity.

The question was before the court of appeals in the case of Lacroy v. N. Y., L. E. & W. R. R. Co., 132 N. Y., 570; 43 St. Rep., 711, but that was an extreme case, and full opportunity was given to all the train men for examination of the train after it was made up and in full operation. In fact it was on a side track idle for nearly two hours, and although it was known that the train was soon to make a dangerous descent, no effort was made to ascertain whether the brakes which would be subjected to a severe strain were in condition for its endurance.

Questions of contributive negligence in failing to make inspections are,to be determined in the same manner as other questions of the same character arising in any other way.

If the facts and circumstances leave the question so plain that a verdict would not be permitted to stand in favor of the plaintiff, the complaint is to be dismissed by the trial court.

We do not think this case was sufficiently plain to justify the trial judge in convicting the plaintiff of contributive negligence as a matter of law, and that he was required to submit the question to the jury under proper instructions, as he did.

The charge was faultless, and no error was committed upon the trial.

The judgment and order should be affirmed, with costs.

Pbatt, J., concurs. _


author: Pratt, J.

text:
    The Village of Pelham Manor, App’lt, v. The New Rochelle Water Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Water companies — Bight to lay pipes in adjoining village,
    A water company which has received a permit from a village to organize for tlie purpose of supplying it with water, has the right under chapter 56ii, Laws 1890, to lay its pipes in an adjoining village when necessary without the cousent of the latter village.
    Appeal from judgment dismissing complaint.

      Jabish Holmes, Jr., for app’lt; Martin J. Keogh, for resp’t.
   Pratt, J.

This is an appeal from a judgment rendered by the court at special term, dismissing the complaint upon the merits, with costs.

The action is brought for an injunction to restrain defendant from laying its water mains in the Boston Post road, being within the municipal limits of the plaintiff, the village of Pelham Manor.

Plaintiff contends that, before defendant can lawfully lay its mains in a public highway in said village, it must first secure the ■consent of the plaintiff. That, not having secured said consent, defendant’s acts, in attempting to so lay its mains, were unlawful and could be restrained by injunction.

The facts in the case are as follows: The plaintiff is a village and municipal corporation, located within the town of Pelham, adjoining the village of New Rochelle. The defendant is a domestic corporation, authorized to supply the village of New Rochelle, in said town of New Rochelle, with water for domestic purposes and public use. *

The rights and powers of defendant are defined by chapter 566, art. 7, § 82, of the Laws of 1890, known as the “ Transportation corporation law.” Section 82 of said law declares that every corporation existing under said act, in addition to its ordinary powers, shall also have power “ to lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or such village where such permit, a permit authorizing the formation of the corporation referred to in § 80 of the act of 1890, has been obtained.”

The defendant obtained the permit referred to in § 80 of chapter 566 of the Laws of 1890, from the trustees of the village of New Rochelle, which adjoins the village of Pelham Manor. The permit must be signed by a majority of the trustees of the village, and must authorize the formation of the corporation for the purpose of supplying such village with water.

This permit bears date December 8, 1884, but it is to be observed that this permit was granted under the law of 1873, chap. 737, the provisions of which, so far as material to this inquiry, are embraced in chap. 566 of the act of 1890. Thereupon the defendant must be regarded as existing under the law of 1890, and under that act, among its provisions, is the following: “ To lay their water pipes in any streets or avenues or public places of an adjoining town or village to the town or village where such permit has been obtained.”

The defendant, having obtained the permit of, and entered into an agreement with, the village of New Eochelle to supply it with water, brings itself within the statute quoted above, and no permit is required from the authorities of the plaintiff.

In exercising the franchises possessed by the defendants they are performing quasi public functions and cannot be restrained by courts of equity unless they are exceeding their powers.

It is not claimed that the statute of 1890 is invalid, neither did it appear that the acts sought to be restrained would result in irreparable injury to the plaintiff. Village of Tarrytown v. Pocontico Water Works Co., 1 N. Y. Supp., 394; S. C., 15 St. Rep., 816.

It is not material on what point of the compass the plaintiff is located from New Rochelle, as the court below has found: “ Seventh. That it is necessary for the defendant, in order to carry out its contract with the village of New Eochelle, to lay and connect its mains through and under the Boston railroad in the village of Pelham Manor,” and such finding is fully substantiated by the evidence.

We have examined the exceptions taken upon the trial and find none of sufficient merit to warrant a reversal of the judgment.

I may add, in conclusion, that the construction of the statute claimed by the plaintiff cannot prevail, for the reason that if the right to lay a pipe in an adjoining town or village depended entirely .upon a consent to be given by such village, then no water company could supply water to any village unless its source of supply was located in the village to be supplied. We think the construction given by the court below under the facts proved was reasonable and just.

Judgment affirmed, with costs. .

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Barnard, P. J. Dykman, J. (dissenting).

text:
    Michael B. Dinan, App’lt, v. William Coneys and Hannah Coneys, Resp’ts.

      (Supreme Court, General Term, Second, Department,

      Filed February 13, 1893.)

    1. Ejectment — Counterclaim—Legacy charged on land.
    Where land is devised charged with the payment of a legacy, the legatee, who is in possession of the land, may counterclaim the amount of said legacy in an action by the devisee to recover possession.

      2. Same.
    In such case it is not sufficient to give the legatee a judgment for the amount of the legacy; but a referee should he appointed to sell the land and pay the legacy from the proceeds.
    (Dykmah, J., dissents.)
    Appeal from judgment entered upon the report of a referee, and especially from that part which adjudges that defendant, Hannah Coneys, is entitled to recover of plaintiff the amount of' a certain legacy.

      Snider & Hopper, for app’lt; A. & A. X. Fallon, for resp’ts.
   Barnard, P. J.

Daniel R. Dinan devised a parcel of real estate situate in Rockland county to his son, the plaintiff. He gave the sum of $300 to the defendant, Hannah Coneys, and made the same a charge on the land. The defendants have occupied the land since the testator’s death in 1883. The plaintiff seeks to recover possession of the land. The defendant, Wm. Coneys, avers that he has a claim for repairs made at plaintiff’s request The defendant, Hannah Coneys, sets up the bequest and its charge upon the land, and asks judgment for its recovery of the plaintiff. The claim for repairs was rejected on the trial. No proof was given to show the payment of the $300, or of any part of it. The referee gave judgment for the recovery of the land by the plaintiff, and for a judgment for the bequest with interest in favor of Hannah Coneys against the plaintiff.

By § 501 of the Code, a defendant may set up a cause of action connected with the subject of the action. The subject of the action is the real estate in question. One party seeks possession, and the other seeks to recover the amount of a lien she has on the property created by the instrument which gave the title to the plaintiff. The G. & H. Mfg. Co. v. Hall, 61 N. Y., 226.

The judgment did not go far enough. There should have been appointed a referee to sell the land, and out of the proceeds to pay the legacy, and after payment of the same to pay over the balance to the plaintiff.

The judgment should be modified in this respect, and, as modified. affirmed, with costs.

Pratt, J., concurs.

Dykman, J. (dissenting).

This case presents some unusual features. The action is for the recovery of real property in Rockland county, formerly owned by Daniel Dinan, the father of the plaintiff and the defendant, Hannah Coneys, who is the wife of the defendant, William Coneys.

Daniel Dinan died in the year 1883, seized and possessed of the property, leaving a last will and testament by which he devised the same to the plaintiff, and gave to the defendant, Hannah Coneys, a legacy of $300, which he charged upon the land.

The defendants went into possession of the premises after the death of the testator, and were in possession at the time of the commencement of this action. The defendants answered separately.

William Coneys said in his answer that he had expended large sums of money in the reparation of the buildings upon the premises with the knowledge, permission and consent of the plaintiff, amounting to $1,175, for which he demanded judgment against the plaintiff..

The defendant, Hannah Coneys, set up her legacy and demanded judgment therefor with interest.

The plaintiff served a reply to the answer of Hannah Coneys, in which he admitted the claim, but said that she remained upon and occupied the premises under an understanding that the value of the use and occupation and the rents collected should be applied to the payment and satisfaction of the legacy, and charged that the value of the use and the rents received exceeded the amount of the legacy, and that the same was thereby paid and discharged.

The cause was referred to a referee to hear and determine, and upon the trial the plaintiff proved that he was the son to whom the property was devised, the death of his father, the possession of the defendants, and then offered the will in evidence and rested. He made no effort to prove the agreement set up in his reply for the satisfaction of the legacy of his sister.

The defendant, William Coneys, then undertook to prove the repairs he had made to the buildings on the premises, but the testimony was all excluded upon the plaintiff’s objection.

The interest upon the legacy of Hannah Coneys was computed and the testimony was closed.

The referee reported in favor, of the plaintiff for the recovery of the premises and in favor of the defendant, Hannah Coneys, for $447.45.

Judgment has been entered accordingly in favor of the plaintiff against the defendants for the recovery of the premises and in favor of the defendant, Hannah Coneys, against the plaintiff for $447.45.

From that judgment the plaintiff alone has appealed, but he only seeks to reverse the money judgment against him.

The defendant William Coneys has not appealed and, therefore, we cannot examine the rejection of his claim by the referee.

The sole question, therefore, for our determination upon this appeal is whether the referee committed an error in allowing the defendant Hannah Coneys to recover her legacy against the plaintiff in this action.

In the first place it was not set up and could not be allowed as a counterclaim. The plaintiff was entitled to the possession of the premises and this was an action at law for their recovery. No counterclaim could reduce his recovery, and the claim interposed against -him was not designed to work such reduction. It was an independent demand, and at most constituted a legal cause of action. In the next place, no action at law could be maintained against the plaintiff for the amount of the legacy without an express promise to pay, and no such promise was set up or proven.

No personal obligation ever rested upon the plaintiff for the payment of the legacy.- He could refuse to accept the devise and leave the legatee to her remedy against the land. The fact that her father gave her a legacy imposed no personal duty upon the plaintiff. He can only be sued at law as terre tenant, or upon a promise express or implied.

The portion of the judgment, therefore, in favor of the defendant, Hannah Coneys, against the plaintiff must be reversed, with costs.

Judgment modified as stated in opinion and as modified affirmed, with costs. •__


author: Barnard, P. J.

text:
    Benjamin Wright, App’lt, v. David Miller et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Res adjudicata.
    Plaintiff was trustee of an estate, and advanced money to one of the heirs. In an action of partition he asked that these sums he paid out of the share of such heir in the proceeds of sale, which claim was disputed and decided against him. He then brought this action to charge the amount advanced upon his share of the proceeds of sale in the referee’s hands, and testified to an agreement by said heir that it shoidd be so charged. Held, that the decision in the partition action was final, and that the addition of the promise did not change the rule.
    Appeal from judgment dismissing the complaint

      D. Edgar Anthony, for app’lt; F. P. Bellamy, for resp’t, D. Miller; Samuel Keeler, for resp’ts, Ezra Miller et al.

   Barnard, P. J.

The plaintiff was a trustee under the last will and testament of Elizabeth Ann Wright. The trust ceased in 1871, upon the death of Hannah E. Byerson, and the land included in the trust became vested in the heirs-at-law of Hannah E. Byerson. Charles E. Miller was one of these heirs. The plaintiff continued to collect the rents. In 1876, Charles E. Miller, who owned one-third of the property, sold to his son his interest, reserving a life estate therein to himself. Charles E. Miller died in 1884. Before his death there was pending a partition action, and after his death all his heirs-at-law were brought in. The original complaint contained an averment that the plaintiff had advanced to Charles E. Miller, in his lifetime, two sums of money,•$!4.35 and $50, and the plaintiff asked that these amounts should be paid out of the share of Charles E. Miller in the proceeds of sale. This claim was disputed, tried and decided against the plaintiff. He then instituted this action to charge the amount so advanced upon the proceeds of sale in the referee’s hands, and after proving the advancement and giving proof tending to show that there was an agreement to so charge the same made .by Charles E. Miller in his lifetime, the complaint was dismissed upon the ground that the question had been finally settled in the partition action. The partition action made no averment of a special agreement to charge the share with the advance. The present action does. The decision in the partition action is final. It refers to the same items. It sought to charge the share in the land in one case and the money, the proceeds of the sale of the land, in the present case. The plaintiff made his own issue in the partition action and was defeated. The addition of the promise in the second action does not change the rule. The promise, if there was one, was involved in the issue in the partition action, and if it was not actually litigated, it might have been.

The decision dismissing the complaint is supported by the authorities. Pray v. Hegeman, 98 N. Y., 351; Campbell Printing Press & Mfg. Co. v. Walker, 114 id., 7; 22 St. Rep., 173.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    William F. Lawrence et al., Resp’ts, v. Edward L’Estrange Phipps, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Assignment — Acceptance—Evidence.
    A building contractor gave to plaintiffs drafts on defendant for certain sums * ‘ from and out of any money due and to become due me ” for building certain houses, reciting that plaintiffs had furnished materials for said houses and that the drafts were intended as an absolute transfer of so much money arising from the contract as should satisfy their claim fur said material. _ Defendant accepted said drafts, payable when the buildings were entirely finished. The contractor abandoned the work, and defendant was obliged to finish the houses at his own expense. Held, that said drafts or orders were assignments; that the acceptance was general except as to time of payment, and was conditioned upon any amount being due to the contractor, and that it was error to exclude evidence to show that nothing was due him.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.

      Isaac N. Mills, for app'lt; James M. Hunt, for resp’ts.
   Pratt, J.

This is an appeal by the defendant from a judgment entered upon a verdict which was directed by the court at the circuit, against the defendant in favor of the plaintiffs for the sum of $1,802.87. The action was brought to recover the amount of two certain orders or drafts drawn by Albert W. Mott in favor of the plaintiffs upon the defendant, Edward L’Estrange Phipps, each dated September 28, 1891, and each accepted by the defendant.. The order and acceptance are as follows:

“Yonkers, N. Y., Sept. 28, 1891.
“ Mr. Edward L’Estrange Phipps:
Dear Sir — Please pay to Lawrence Brothers the sum of five hundred and ninety-three dollars and fifty-eight cents ($593.58), from and out of any money due and to become due me under my conract for building your two houses, the one at Washingtonville and the other on lot 40 Monroe street, and charge said sum to my account. Said Lawrence Brothers having furnished me with the building materials for the erection of said houses, this instrument is intended as an absolute transfer to them of so much money arising out of said contract as will satisfy their said claim for building materials jurnished for said houses.
“Albert W. Mott.
“ Endorsed.
“Mount Vernon, 10 Oct., 1891.
“ The within order accepted, payable when the buildings are entirely finished. Edward L’Estrange Phipps."
“Yonkers, N. Y., Sept. 28, 1891.
“Mr. Edward L’Estrange Phipps,
“ Mount Vernon, N. Y.:
Dear Sir — Please pay to Lawrence Brothers of Yonkers, from and out of any money due and to become due me for building four houses for you on Monroe street, in Mount Vernon, the sum of eleven hundred and forty-nine dollars and one cent ($1,149.01), said sum to be equally divided between said four houses, and charge the same to my account. Said Lawrence Brothers having supplied me with the building materials for said four houses, this instrument is intended as an absolute transfer to them of so much money arising from said contract as will satisfy their said claim for building materials furnished.
“ Albert W. Mott.
“ Endorsed.
October 10, 1891.
“ The within order accepted payable as the buildings progress or when the same are completed.
“Edw. L’E. Phipps.”

The answer, among other defenses, set up, substantially,- that Mott abandoned the contract and that the defendant was obliged to finish the buildings at his own expense, and that no sum of money ever became due to said Mott out of which a payment of the orders could be made. The court excluded proof to substantiate the defense, holding that the acceptance of the orders made the defendant liable as soon as the houses were completed. Such is not our construction of the transaction.

We think the orders must be regarded as assignments, and that if nothing ever became due to Mott, no liability arose upon the acceptance.

The defendant accepted the order as drawn. The order was, “ pay * * * dollars from and out of any money due and to become due me under my contract for building.”

It was simply an order to pay money due or to become due Mott, not to pay absolutely, and if the order had stopped there and been accepted no one would claim that the defendant could be held liable unless money was or did become due.

The balance of the writing in the contract simply states the considerations moving from the plaintiffs to Mott for the orders, and the intention on Mott’s part that the order should be regarded as an assignment or transfer of the money expressed in the order, to wit, of the sum then due or to become due.

Now, what is the effect of the acceptance in those words: “ The within order accepted, payable when the building is finished?"

This was an acceptance to pay according to the terms of the order, with limitations that even the amount due or to become due should not be paid until the contract was completed in one case, and in the other, to pay the amount due or to become due, at the option of the defendant, during the progress of the work or at the completion of the contract. Neither order required the defendant to pay any money absolutely; the requirement being to pay money due or to become due under Mott’s contract It was an acceptance to pay money upon the happening of the event of money becoming due the drawer under his contract, but payable only when the contract was completed.

The acceptance was general except as to time of payment. It was only to be paid out of a certain fund and upon condition that such a fund should exist.

I think it is plain, from the reading of the orders and all the surrounding circumstances, it was the intent of both parties that the orders should be paid out of moneys due Mott upon the completion of his contract

Nothing appears upon the face of the contract showing any intent either upon the part of Mott or the defendant that the defendant should bind himself in any way to pay any money only such as should be due under the contract and at the time only when the contract was completed. Home Bank v. Drumgoole, 109 N. Y., 63; 14 St. Rep., 40; Van Wagner v. Terrett, 27 Barb., 181.

We also think it was error to exclude proof offered by the defendant tending to show that nothing ever became due to Mott after the giving of the orders to plaintiff, in order to rebut any presumption that might arise that something was due to Mott when the orders were accepted.

There are various other exceptions, but they require no notice, as these views, if correct, must result in a reversal of the judgment. But, it is claimed by the plaintiff, that even assuming the orders to be mere assignments, still that it appeared upon the trial there was due to Mott from defendant the sum of $626.76 upon the two contracts, and for that sum he is entitled to judgment. And such appears to be the conclusion as derived from the pleadings.

Judgment reversed and new trial granted, costs to abide event, with leave to plaintiff to offer to reduce the judgment to $626.76, and to apply for judgment upon the pleadings for that amount, with costs.

Barnard, P. J., concurs ; Dykman, J., not sitting.


author: Barnard, J.

text:
    Oliver W. Barnes, Resp’t, v. James Seligman et al., Ex’rs, Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)
    Costs — Security for — Denial of.
    In an action against executors for breach of an agreement by their testator, where it appeared that a judgment for costs recovered by_ defendants in a previous action remains unpaid, but the surety on appeal is good, and the plaintiff claims to be perfectly solvent, and there is a dispute as to the exact decision of the court of appeals in that case, an order denying a motion for security for costs will not be disturbed.
    Appeal from order denying motion for security for costs.

      George W Seligman, for app’lts; Ira Leo Bamberger and Mitchell May, for resp’t.
   Barnard, J.

This action is brought against the executors of Joseph Seligrnan, deceased, and George H. Brown. The allegations of the complaint therein are that the deceased Mr. Seligrnan in his life time and George H. Brown agreed to deliver for value to the plaintiff two thousand shares of the full paid stock of the New York City Central Underground Railway Company. The relief sought is a specific performance of the contract. The executors have not yet made an answer to the complaint. This motion is made to compel the plaintiff to give security for costs under § 8271 of the Code. The motion was denied at special term. The papers do not show any abuse of the discretion of the court Brown is insolvent There has been a previous action between the same parties resulting in a judgment in favor of the defendants. The judgment was modified at general term and again in the court of appeals, but judgment still remains against the plaintiff for $1,361.51, with $117.46 costs. This judgment is unpaid, but the surety on appeal is good. The execution therein against Barnes was returned unsatisfied, but Barnes asserts that there is no other judgment against him and that he is perfectly solvent. The parties differ as to the tenor and effect of the decision of the court of appeals. Barnes says that the decision was to the effect that Seligrnan and Brown had fraudulently issued stock to Barnes. The attorney for Seligrnan denies this, but no case or opinion in .the court of appeals is presented. The § 3271 permits the court in its discretion to compel the plaintiff to file security for costs and this power exists without proof of mismanagement or bad faith. Tolman v. Syracuse, etc., R. R., 92 N. Y., 353.

There being proof that a doubt as to plaintiff’s insolvency exists and the exact decision of the court of appeals being in dispute, and the general rule being that a plaintiff may sue without giving security, the motion was properly denied.

The order should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Charles M. Rowley, Resp’t, v. Thomas J. Swift, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Pleading — Complaint—Agreement to repay amount paid for stock.
    A complaint alleging a payment for certain stock, and that defendant gave a written agreement to make good the amount at any time after one year from date, sets forth a good cause of action, whether the transaction he regarded as one for a reconvevanee of the stock on request after one year or as a loan upon the stock for one year.
    Appeal from judgment entered upon order overruling demurrer to complaint.

      Henry M. Taylor, for app’lt; J. H. Miller (E. Wells, of counsel), for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on an order overruling a demurrer to the complaint based upon the ground that no cause of action was stated therein.

The court below, in deciding the case, said : The complaint states that the plaintiff paid and advanced to the defendant $1,250 for certain stock. That as part of the transaction the defendant gave plaintiff a written agreement that he would make good that amount to the plaintiff at any time after the date óf one year from the transfer of the stock and the receipt by him of the money.

“ Whether this transaction was one for a reconveyance of the stock upon request after the year, or was a loan upon the stock payable at the end of the year is immaterial. A good cause of action existed in either case.” This memorandum expresses the point in a nut shell.

It is clear that the agreement was to make good $1,250 after one year. What did the parties mean by the words “ make good,” unless they meant that defendant should pay that amount to the plaintiff ? Nothing but that could have been intended.

The consideration was the advance to the defendant of that amount. If the transaction had been an absolute purchase and sale of the stock, there would have been no agreement in writing to make good to the plaintiff the money advanced. If the memorandum did not express the whole agreement between the parties, or any condition was attached to it, it was subject of proof upon the trial on the part of the defendant.

The plaintiff averred enough to make a prima facie case, By counting upon the promise in writing to pay the $1,250 at the end of a year; the promise being absolute, and referring solely to the money advanced. The promise does not refer to the stock at all.

The complaint, possibly, is inartificially drawn, but it is not necessary for a pleader to state the legal effect of the facts alleged, as the court will render such judgment as the facts, when proved, warrant. Hemmingway v. Poucher, 98 N. Y., 281-287.

And the court is not precluded from giving such a judgment by the plaintiff averring an erroneous conclusion of law. Chatfield v. Simonson, 92 N. Y., 218, and cases cited.

The advance of the money, the delivery of the stock, and the promise to repay or make good the money after one year constituted one transaction.

These facts, when analyzed, mean that as a consideration for the advance of the money, that fifty shares of stock should be delivered, and that after one year the defendant should make good to the plaintiff the money received; if there was any agreement outside of the memorandum that plaintiff should return the stock, or its value be estimated, it was available as matter of defense.

ii is true the agreement does not say how he shall “ make it good,” but admitting by demurrer that he made such a promise, the presumption is that he should make it good in the only practicable way, by paying that amount of money.

Judgment affirmed, with costs.

Dykmakt, J., concurs; Barnard, P. J., not sitting.


author: Hardin, P. J. Martin, J.

text:
    Andrew W. Munk, Resp’t, v. The City of Watertown, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 23, 1893.)

      1. Municipal corporations — Nuisance.
    The city of W. caused a change in a sewer, the same being done by contract, under plans and specifications prepared by an engineer, which proved faulty, and in an attempt to better it, changes were made, but the sewage set back into plaintiff’s premises, flooding it with filth. He sought out several officers of the city, and called their attention to the flooding, and a committee inspected the premises, a remedy was sought but none found until damage had been done to the premises and plaintiff's wife made sick. It appeared that prior to the flooding the city engineer had notice that the sewer outlet was insufficient. Held, that the city was liable to plaintiff for the damage done to his premises.
    2. Same — Damages—Loss of services of plaintiff’s wife.
    In such case evidence that plaintiff’s wife was sick in bed for two weeks, had done her own work and worked outside for years, and that a woman was employed in the house during her sickness at seventy- five cents per day, is insufficient to justify the court in submitting to the jury the question of the value of the wife’s services, or to authorize the court to instruct it that it might include in its verdict such damages as it might deem a proper compensation for the loss of her services.
    Verdict at the Jefferson circuit in favor of the plaintiff for $250 damages. Motion for a new trial made on the minutes heard and denied. An appeal is taken from that order and from the judgment entered upon the verdict. Plaintiff alleges damages sustained to his premises and loss of services of his wife by reason of sickness caused by the large quantities of water, filth and sewage being driven into his cellar and upon his premises, situated on the east side of Sherman street in the city of Watertown, occurring in the months of January, March, April and July, 1891. In the year 1890 the common council of the city of Watertown changed the system of sewage theretofore. existing, so far as it affected the premises of the plaintiff, causing the sewer to be torn up which theretofore ran past the premises of the plaintiff, and inaugurated proceedings for the construction of a new sewer with a view of draining a much larger territory than the old sewer, and with a view of discharging the same" in a different direction through Sherman street into what is known as Baker street sewer. An engineer prepared plans and specifications, the contract was let •in pursuance thereof, and the work was carried forward, after such proceedings had in the common council, and “the sewer was commenced on the 9th day of September and completed about the 23d day of October, 1890.” According to such plans and specifications no provision was made for taking into such sewer the large quantities of water that theretofore had gathered and subsequently did gather in what is known as Camp’s ditch ; however, during the construction of the sewer, with the knowledge of several officers of the defendant, and the direction of one of them, an opening was made in the sewer so as to take in the waters of Camp’s ditch, one of the aldermen making the suggestion or request to the parties in charge of the construction. Camp’s ditch water was turned into the sewer before the completion of the same, and before a report was made to the common council of the construction of the sewer and of the completion thereof under the terms of the contract, apparently with the knowledge of several of the officers of the opening made to receive the waters from Camp’s ditch, which knowledge they derived before the report of the engineer and the claim of the contractor for the construction of the sewer were reóeived and approved. Evidence is given of acts of the defendant subsequently in shutting out from the sewer the water of Camp’s ditch and of various other acts and measures resorted to by the defendant to remedy the difficulties which were found to exist in the sewer after the completion of the work by the contractor as aforesaid. Evidence was given tending to show that Camp’s ditch at various seasons of the year held large quantities of water which was filthy and drained a large territory used for gardening and other purposes; that the waters thereof were impregnated with drainages from manure and sewers. Extensive evidence relating to plaintiff’s damage appears in the case, and defendant produced evidence of the orders of the common council in respect to a new system of sewerage, and some evidence tending to contradict and rebut the testimony offered by the plaintiff on the main issues raised by the evidence of the plaintiff.

      John N. Carlisle, for app’lt; Elon R. Brown, for resp’t.
   Hardin, P. J.

Upon the close of the evidence the trial judge ruled that he would submit to the jury, first, “the question of the negligence of the city in not furnishing an outlet for the flow of the Woodruff, Sherman and Washington street sewer, so it set it back in the premises of the plaintiff at the time alleged in the complaint and proved on the trial; ” and second, “Also on the question of damages.” By this ruling apparently all other questions were eliminated from the case, and those two questions were presented to the jury by a charge which commented upon the evidence bearing upon those questions. Appellant’s learned counsel attempts to shield the defendant from liability by proof of certain plans and specifications which were adopted by the common council, and insists that in the exercise of its discretionary powers and functions of a judicial nature, it should be exempt from liability.

He calls our attention to numerous cases that are reviewed and referred to in Seifert v. City of Brooklyn, 101 N. Y., 136. In that case, however, it was held, viz.: “A municipal corporation has • no right, in the exercise of its powers to determine when, where and how to make improvements, to do so upon a plan which substantially involves the appropriation by it of the property of a citizen to a public use without making compensation therefor. Where exercise of a judicial or discretionary power by a municipal corporation results in a direct and physical injury to the property of an individual, which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan, and the adoption of prudential measures, the-corporation is liable for such damages as occur in consequence of its continuance of the original cause after notice and an omission to adopt measures to remedy the evil.” In that case it is said “It does not shield the corporation where injury results solely from the defective manner in which the authority was originally exercised, and from continuance in wrong after notice of the injury.”

In the decision in Garratt v. Trustees of Village of Canadaigua, 16 N. Y. Supp., 717; 40 St. Rep., 944; S. C., affirmed, 32 N. E. Rep., 142; 48 St. Rep., 462, we do not understand that the doctrine of the Seifert case is disturbed. In the Garratt case, in the opinion delivered in the court of appeals, it is said: “ It is not alleged or found, and there is no request to find, that the defendants have omitted any duty which they owe to the plaintiff, with respect to the construction of the gates or the manner of their operation. It is not found, and there is no request to find, that in any of these particulars the defendants or their predecessors have been guilty of any negligent or unlawful act.” In the case in hand evidence was given tending to show negligence on the part of the defendant. In the case before us, as soon as the plaintiff’s premises were flooded on the 1st of January, 1891, he sought out several of the officers of the defendant and called their attention to the circumstances attending the flooding of his premises and the deposit therein of filthy waters and noxious matters; and within a few days a committee in behalf of the common council visited the premises of the plaintiff and made an inspection of the premises. Surely on that occasion the defendant had knowledge that the sewer was inadequate and insufficient for the purposes for which it was designed. Shortly thereafter the defendant, by its agent, sought to remedy the defects and to remove the cause of the flooding of the premises of the plaintiff; however, their efforts were insufficient until after the damages mentioned in the complaint were sustained by the plaintiff and his wife. After a careful persual of the evidence we are of the opinion that the same warranted a finding by the jury of negligence on the part of the defendant and that the case falls within the principles laid down in the Seifert case. It seems some injuries were done to the plaintiff’s premises in the month of November and a claim therefor was presented to the defendant and allowed. Probably then the defendant obtained information sufficient to call upon it to remedy the defects and imperfections.

In the course of the charge the trial judge observed : “ I charge you that, in view of the facts and circumstances proved in this case, that it is not sufficient to charge the city with liability that the Baker street sewer was insufficient as an outlet, but you must further find that the city had notice, prior to the alleged flooding in January of the plaintiff’s premises, that this outlet was insufficient and inadequate to carry off the water.” We think the charge was sufficiently favorable to the defendant. We think the evidence warranted the jury in finding in accordance with the instruction. Although in a subsequent sentence the judge remarked to the jury, viz.: “ I think you will have no difficulty in finding for the affirmative,” we are of the opinion that he did not take the question from the jury; that he did no more than to express an opinion as to the evidence, leaving the jury at liberty to find in accordance with the testimony upon that subject. 19 Wend., 186; Gardner v. Picket, 2 Hilt., 345; S. C., affirmed, 22 N. Y., 355. In a subsequent portion of his charge he observes, viz.: “But, did the city have notice of this inadequacy of outlet? On that, proposition you have the fact that, at the time when this Sherman street sewer was put into the Baker street sewer, the city engineer examined the manholes at that locality, and he discovered a certain amount of sediment around the inside of the wall of the manhole, some two feet higher than the tile itself, indicating, as he says, that the water had risen above the tile, above the sewer, up into the manhole two feet above it. The city engineer was one of the defendant’s officers. Notice to him was notice to the city. And it is for you to say whether or not that was sufficient evidence, or sufficient notice rather, to charge the city with negligence in preparing the proper outlet for this Sherman street sewer.'” And further on, in his comments to the jury, he said: “ You have the fact that, prior to this January flooding, actual experience had demonstrated the fact that this outlet was insufficient because of the November flooding, which has been testified to by the plaintiff and of which the city had knowledge.” We think the defendant obtained no exception to that branch of the charge which would warrant us in interfering with the verdict. We think the city may not escape the consequence following the change of plans and reception of the waters of Gamp ditch, simply because it passed no resolution of its common council authorizing the change.

The evidence indicates a direction by one of the aldermen of the city in its behalf, at the time the departure was made from the plans and specifications prepared by the engineer and embraced in the contract. The city having approved of the construction of the sewer, as it did when it settled with the contractor, it is too late for it to say that the plans and specifications can shield it from liability. Stoddard v. Village of Saratoga Springs, 127 N. Y., 261; 38 St. Rep., 683; Nims v. City of Troy, 59 N. Y., 500.

(2) In the course of the charge upon the subject of damages the judge observed : “You have the fact that the plaintiff’s wife was sick in bed; that he lost the value of her services. And you may include in your verdict such damages as you shall deem the proper compensation for the loss of her services, aside from the actual expenditures in the procuring of servants to take her place.”

Appellant's learned counsel claims that that portion of the charge which we have just stated was erroneous and lie took an exception thereto in the following language: “I except to so much of your honor’s charge as says we are entitled to give the plaintiff damages for the loss of the services of the wife incurred during her sickness.” The language of the exception is obscure, indefinite, if not unfortunate. If the evidence relating to that subject was indefinite, the plaintiff would be entitled to recover nominal damages; second, the facts and circumstances, the strength and health of the wife were before the jury and some evidence pertinent to the question of the value of domestic services and household services was before the jury. The case differs from Leeds v. Metropolitan Gas Light Co., 90 N. Y., 26, as in that case there was “ no evidence on which an estimation of such value could be founded ” given, and it was said in that case that “ If plaintiff fails to prove the Value of the time lost, or facts on which an estimate of such value can be founded, only nominal damages for that item can be given.”

Masterson v. The Village of Mount Vernon, 58 N. Y., 391, was an action to recover damages for the negligence of the defendant, and in the course of the opinion Grover, J., said: “ The plaintiff had the right to prove the business in which he was engaged, its extent, and the particular part transacted by him, and, if he could, the compensation usually paid to persons doing such business for others. These are circumstances the jury have a right to consider in fixing the value of the time.” At the close of the opinion in People ex rel. v. M. M. P. Union, 118 N. Y., 109; 27 St. Rep., 963, it was said: “ There was some evidence upon which to base their estimate, and the question in this respect differed from that in Leeds v. M. G. L. Co., 90 N. Y., 26.”

If a request had been made to the trial judge that in the absence of more full facts and circumstances the jury should only give nominal damages, probably the request would have been yielded to. We think the exception is not sufficient to warrant us in disturbing the verdict.

(3.) After the issue was joined apparently plaintiff applied for leave to serve a supplemental complaint, and as no appeal is made from that order we do not review the action of the court in respect thereto, nor as to the rulings at the trial receiving evidence thereunder. It was conceded at the trial that the complaint was amended in conformity to the order made in that regard.

(4.) We have looked at the other exceptions discussed in the brief of the learned counsel for the appellant and we are of the opinion that none of them require us to interfere with the verdict.

However, a majority of the court áre of the opinion that there was error in respect to the damages awarded, and that the judgment ought to be modified by reducing the damages to $112.75.

Judgment and order reversed and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to modify the judgment by reducing the damages to $112.75, and if such stipulation be given, the order and judgment as modified affirmed, without costs of the appeal to either party.

Martin, J.

The plaintiff’s claim for damages included an item of $180, for loss of services of his wife during her sickness, which was claimed to have been occasioned by the defendant’s negligence.

The only evidence in relation to this item was that plaintiff’s wife was sick and confined to her bed about two weeks; that up to that time she had been in the habit of doing her work for years, keeping no servant, and working some outside, and that a woman who was employed in the house during her sickness received seventy-five cents a day for her services, which were of that value.

In submitting the case the court, after referring to the other items of damage proved, which amounted in the aggregate to the sum of $144.75, instructed the jury as follows: “Aside from those, gentlemen, you have the fact that the plaintiffs wife was sick in bed; that he- lost the value of her services. And you1 may include in your verdict such damages as yon shall deem the' proper compensation for the loss of her services, aside from the actual expenditures in the procuring of servants to take her place.”

To this portion of the charge the defendant took the following exception: “ Defendant’s counsel: I except to so much of your Honor’s charge as says that we are entitled to give the plaintiff damages for the loss of the services of the wife incurred during her sickness.”

Subsequently, the defendant’s counsel asked the court to charge “ That the plaintiff is not entitled to recover any damages for loss of services of the wife, on the ground that the plaintiff has failed to give any evidence showing what the damages were by reason of the loss of such service.” The court declined so to charge, and the defendant excepted.

I think these exceptions fairly present the question of the sufficiency of the plaintiff’s evidence to entitle him to recover for loss of services of his wife during her sickness. It would be hypercritical to hold that the defendant’s exception to the charge in this respect did not sufficiently raise the question of its correctness. It is true the appeal book shows that in taking the exception the defendant’s counsel used the word “we” instead of “the jury." That it was plainly the intent and purpose of the defendant to except to the portion of the charge relating to this subject is manifest. I think a fair and reasonable construction of the exception shows the defendant’s intent, and that the question was fairly raised. It was also presented by his request, the refusal of the court to charge as requested, and the exception taken thereto.

Thus the question is, whether the evidence was sufficient to justify the court in submitting to the determination of the jury the value of the services of the plaintiff’s wife during her sickness, and to justify the court in instructing the jury that it might include in its verdict such damages as it deemed a proper compensation for the loss of her services, aside from the actual expenditures in procuring servants to take her place.

In Leeds v. Metropolitan Gas-Light Co. (90 N.Y., 26), it was held that where loss of time is claimed as an item of damages from personal injury occasioned by negligence, if the plaintiff fails to prove the value of the time lost, or facts on which an estimate of such value can be founded, only nominal damages for that item can be given.

In Staal v. The Grand St. & Newtown R. R. Co. (107 N.Y., 625; 11 St. Rep., 352), the correctness of the rule in the Leeds case was recognized, and it was held that in an action to recover damages for personal injuries caused by the defendant’s negligence, where no evidence was given as to the circumstances and conditions in life of the plaintiff, his earning power, skill and capacity, no damages for future pecuniary loss could be awarded.

In Baker v. M. R. R. Co. (118 N. Y., 537; 29 St. Rep., 936), the plaintiff was a music teacher, also a teacher in the public schools. 'There was evidence to the effect that she was unable to attend her school for six weeks; that she lost her salary as such teacher for that time ; that the injury to her finger was of such a character as to render it so sensitive that she could not strike the keys-of a piano with it, and that in giving music lessons it was necessary for her to play in connection with her instructions ; but there .was no evidence as to the amount of the salary paid her as a teacher in the public school, or as to the amount of her wages ■.as a private teacher of music. In that case it was said that she was entitled to recover only nominal damages for her loss of services as such teacher.

In Wood v. City of Watertown (58 Hun, 298; 34 St. Rep., 808), 'this court had occasion to examine a similar question, and it was there held that where loss of time is claimed as an item of damages for personal injury occasioned by negligence, if the party fails to prove the value of the time lost, or facts upon which an estimate of such value can be based, only nominal damages can be given. As was said in that case, “ The doctrine of the Leeds case, so far as applicable to the case at bar, is in no way affected by the doctrine of the People ex rel. Deverell v. M. M. P. Union (118 N. Y., 101; 27 St. Rep., 963), as in the latter case there was evidence upon which to base an estimate of the damages. As was ■said by the learned judge who delivered the opinion in that case : " The question in this respect differed from that in the Leeds case.’ An examination of the appeal book upon which the case in 118 2J. Y. was heard in the court of appeals shows that the relator’s evidence was to the effect that while he was a member of the respondent union his income was from twenty-five to thirty dollars per week, and that after he was expelled it did not exceed five dollars a week. Therefore, in that case, there was evidence upon which a claim for damages could be based with some degree of ■certainty.” The same principle was held in Meagley v. Hoyt, 125 N. Y., 771; 36 St. Rep., 27.

It seems to me that the question in the present case is plainly within the principle of the cases cited, and that the evidence was insufficient to justify the court in submitting to the jury the question of the value of the services of plaintiff’s wife, or to authorize the court to instruct the jury that it might include in its verdict such damages as it should deem a proper compensation for the loss ■of her services. I find in the case no evidence whatever as to the value of the services performed by her when in health, nor of the character or extent of the work performed by her in keeping the plaintiff’s house.

Obviously there were no facts established by the evidence upon which any fair estimate of the value of her services could be founded. The effect of the charge was to leave it to the jury to guess or speculate as to the value of the services which it was allowed to include as a part of the damages claimed to have been suffered by the plaintiff. I think the defendant’s exception to-' this portion of the charge, and its exception to the court’s refusal to charge as requested, were well taken, and that, as the case-shows, this item formed no inconsiderable portion of the íecovery the judgment should be reversed. I think it no answer to this ruling to say that the plaintiff was entitled to recover at-least nominal damages for loss of services of his wife, as the jury must have understood from the charge of the court that the-plaintiff was entitled to recover substantial damages for such loss, for it awarded about $100 damages therefor in addition to the-full amount paid physicians, nurses and servants to take her place.

I concur in the opinion of the learned presiding justice, except as to the charge of the court as to damages for the plaintiff’s loss of the services of his wife. For that error I think the judgment, should be reversed or modified by reducing the amount of the-plaintiff’s recovery to the sum of $112.75.

Merwin, J., concurs.