text:
    Sylvester Trimmer, App’lt, v. The City of Rochester, Resp’t (2 cases).

      (Court of Appeals, Second Division,

      Filed, January 20, 1892.)

    Municipal coepobations — Assessments — Action to eecoveb moneys PAID ON ILLEGAL ASSESSMENT.
    In case money is collected under an illegal assessment, it cannot be recovered until the assessment is set aside. And where the taxing officers of defendant omitted from the assessment roll realty benefited by a paving improvement, and for this error assessments against the taxpayers who brought actions to set them aside were adjudged illegal, this does not establish a cause of action for the recovery of the money paid by assignors of plaintiff upon assessments against their realty where said assessments had not been set aside, nor "any proceedings instituted for such purpose.
    Appeals from judgments of the general term of the supreme court of the fifth judicial department, which affirmed judgments dismissing the complaints on the merits, entered on the decisions of a special term.
    First Action.
    May 30, 1865, the common council of the city of Rochester, pursuant to chapter 143 of the Laws of 1861, the city charter, confirmed an assessment of $30,830, for curbing and paving Oak street, between Allen and Lisle streets, the sum being assessed upon property benefited by the improvement One-third of the assessment became due August 30, 1865, one-third May 30, 1866, and one-third May 30, 1867. The last two instalments bore interest at the rate of seven per cent from May 30, 1865. Among other property- assessed was a lot belonging to Thomas Brady, upon which there was levied $492, one-third of which, $164, was payable August 30, 1865, one-third May 30, 1866, with interest ■from May 30, 1865, and one-third May 30, 1867, with interest from May 30, 1865. August 30, 1865, Brady paid $164, and April 19, 1866, $174.15 the amount of the second instalment with interest. Prior to February 21, 1888, Brady’s right to recover the sums so paid by him was assigned to this plaintiff, who on the date mentioned demanded payment of the defendant of the sums and February 23, 1888, brought this action to recover the amounts paid, with interest from the dates of payment.
    Second Action.
    An assessment of $602.52 for the same purpose under the same statute was made at the same date against the lands of one Michael Brayer, one-third of which, $200.84, became due August 30,1865, one-third, with interest from May 30, 1865, on the 30th of May, 1866, and one-third, with interest from May 30, 1865, on the 30th of May, 1867. On the 28th of August, 1865, Brayer paid the first two instalments, $401.68, and November 7, 1866, the further sum of $98.00. Prior to September 6, 1888, Brayer’s right to recover the sums so paid was assigned to this plaintiff, and September 6, 1888, he demanded of the defendant the re-payment of the sums and on the next day brought- this action to recover the amounts.
    July 17, 1867, William B. Hasson and others (neither Brady nor Brayer being parties), brought an action to set aside the assessments against their properties upon the ground that certain benefited realty had been omitted from the roll. September 9, 1882, a judgment was recovered in the action adjudging that the assessments against the realty of the plaintiffs in that action were illegal and void by reason of such omission, and the city and its officials were restrained from collecting the assessments from the plaintiffs or out of their property. 65 N". Y., 516; 67 id., 528.

      D. Clinton Barnum, for app’lt; Henry J, Sullivan, for resp’t.

       Affirming 30 St. Rep., 703.

   Follett, Ch. J.

The taxing officers of the defendant omitted from the assessment roll realty benefited by the improvement, and for this error assessments against the taxpayers who brought actions to set them aside were adjudged to be illegal. Hasson v. City of Rochester, 65 N. Y., 516; 67 id., 528. There is a broad distinction between an assessment which is illegal by reason of the existence of some fact outside of the record and one void on the face of the record for lack of jurisdiction of the person or property, or by reason of the unconstitutionality of the statute under which the assessment is made. In the latter case, if money is compulsively obtained it may be recovered from the municipality in an action at law brought by the wronged taxpayer. But in case money is collected under an illegal assessment it cannot be recovered until the assessment is set aside. Horn v. Town of New Lots, 83 N. Y., 101; Purssell v. Mayor, 85 id., 330; Strusburgh v. Mayor, 87 id., 452; Bruecher v. Village of Port Chester, 101 id., 240; Jex v. Mayor, 103 id., 536; 3 St. Rep., 657.

The rights of persons from whom money is collected under such assessments are like those of persons from whom money is collected under judgments void, for example, for lack of jurisdiction, and those which are reversible for error. Money collected under void judgments maybe recovered without first setting them aside, but that collected under judgments erroneously obtained cannot be until they are reversed.

It is agreed that the assessments against the realty of the assignors of the plaintiff, and on account of which the money sought to be recovered in this action was paid, have not been set aside, nor have any proceedings or actions been instituted for such purpose.

The judgment in Hasson's case did not set aside all of the assessments, but only those against the property of the plaintiffs in that action, and the assessments against realty of the assignors of the plaintiff were not affected or invalidated by that judgment, and until they are set aside no action can be maintained to recover the sums paid under them. Matter of Delancey, 52 N. Y., 80; Wilkes v. The Mayor, 79 id., 621; Purssell v. The Mayor, 85 id., 330; Chase v. Chase, 95 id., 373.

The foregoing cases arose under special statutes regulating the remedies of tax payers in cases of illegal assessments in the city of New York. Chap. 338, Laws 1858; chap. 312, Laws 1874; chap. 550, Laws 1880. But Moore v. City of Albany, 98 N. Y., 396, did not arise under a statute affording aggrieved taxpayers special remedies, and it was there held that in case all the assessments on the roll were illegal for a common cause, not appearing on the face of the roll, or on the record on which it rested, a judgment vacating an assessment in favor of one taxpayer did riot vacate the assessments against the others. Reid v. Sup'rs of Albany, 128 N. Y., 364; 40 St. Rep., 90.

The result is that the plaintiff failed to establish a cause of action for the recovery of the money paid and the complaints were rightfully dismissed. These views render it unnecessary to consider the question of the effect of the statute of limitations.

The judgments should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    William T. Peck, App’lt, v. George Belknap, Imp’ld, Resp’t.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Municipal cobfobations—Civil sebvice.
    The disqualification under the civil service law applies not only to the individual who has not passed the requisite examination, but also to the city itself. It cannot employ or receive into its service a person not eligible under the law, and an action can be brought by a taxpayer to restrain the city from so doing and the treasurer from paying him for his services.

      2. Same.
    A formal contract between an assistant to the lamp committee and the mayor, by which the former was appointed to report as to the lamps unlighted, etc., could not change his relation to the city or transform an •ordinary clerk into an independent contractor. Neither the mayor or common council had any power to employ him unless his name was certified by the board of examiners.
    Appeal from an order of the general term of the fifth judicial department, which reversed a judgment of the special term in favor of the plaintiff and dismissed the complaint

      Henry J. Sullivan, for resp’t; John H. Hopkins, for app’lt

       Reversing 28 St. Rep., 467,

   Brown, J.

This action was brought by the plaintiff, as a taxpayer of the city of Rochester, to procure a judgment restraining the mayor of said city from entering into a contract of employment with the defendant Belknap on behalf of the city, whereby said Belknap was to render during a designated period certain services relating" to street lights particularly set forth and enumerated in a resolution of the common council, and to restrain the city clerk and treasurer from drawing upon or paying out to said Belknap from the funds of the city any money under said resolution.

The ground upon which this judgment was sought was that Belknap had not passed the examination which, under the civil service law of the state and the regulations prescribed by the mayor, it was essential he should pass before entering into the public service of the city.

It appeared that about November 1, 1887, the common council -of the city had, by resolution, authorized the employment by the lamp committee of some person to whom the policemen of the ■city were to be required to report the number of street lamps unlighted, and who should keep a book which should contain a record by streets of the gas and electric lamps of the city, and their location, and which should each day show, the number not burning; and pursuant to this resolution, on or about November 15th, said Belknap had been employed- by the lamp committee until April 1, 1888, at a salary of seventy dollars per month, and •on November 19 th he entered upon the discharge of his duties, .and the court found as a fact that he continued to discharge them until the end of the term designated. On December 20, 1887, the common council passed another resolution which directed the mayor to enter into a contract with said Belknap to perform until April 1,1888, the duties specified in the resolution before referred to, and in addition to keeping a record of the unlighted street lamps he was “to perform such other duties as may be connected > with the public street lighting system of the city * * * as may be required by said committee or this common council, and to furnish to said committee and the common council written reports upon any of the subjects aforesaid,” and for which he was to receive as compensation the sum of |313.33 in three equal payments on the first days of February, March and April.

This resolution was vetoed by the mayor on the ground that it was in contravention of the civil service law of the State, but was subsequently repassed over the veto by the common council by a two-thirds vote.

It further appeared that the regulations for the admission of persons into the service of the city prescribed by the mayor and approved by the civil service commission applied to all positions in the public service except to “ election officers, subordinates of the city treasurer, and persons employed by or who seek to enter in the service under the board of education.” That, with that exception, the service was classified as follows: “ Schedule B. (Part one). All officers and members of the police and fire department. (Part two). All other subordinate officers and assistants.” Schedule D. “All persons employed as laborers or day workmen.”

For appointments under schedule D. no examination was required. Applicants for appointments under schedule B. were to be examined as provided in the regulations, and appointments to any positions in part two were to be made from persons whose names were certified by the board of examiners.

It was not disputed that Bélknap’s name had not been certified by the board of examiners, nor that he had never been examined.

The special term decided that the employment of Belknap by the lamp committee, under the resolution of November 1st, and the contract directed to he entered into by the mayor by the resolution of December 20, 1887, were both illegal, and that the payment of any funds of the city as directed by said resolution would constitute waste or injury to such funds within the meaning of chap. 673, Laws of 1887, and gave judgment in accordance with the prayer of the complaint. The general term reversed the judgment and dismissed the complaint on two grounds: First, that the contract directed to be entered into was not an illegal one, and, second, that Belknap was not a subordinate officer, clerk or assistant of the city, but was an independent contractor, and hence not. within the term of the civil service law.

An action against the officers of a municipal corporation to prevent any illegal official act on their part, or to prevent waste or injury to any property or funds of such corporation, .is expressly authorized- by the legislature in the several acts for the protection of taxpayers. Code Civ. Pro., § 1925; chap. 673, Laws of 1887. These acts have very recently received judicial construction in this-court. Talcott v. City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871; Ziegler v. Chapin, 126 N. Y., 342; 37 St. Rep., 490. And whatever difference of opinion existed in those cases with reference to the scope of the laws, the power of the court to interfere on the suit of a taxpayer and restrain illegal official action was not. questioned or denied.

The conclusion of, the general term that the employment of' Belknap was not an illegal act appears to have been founded upon a consideration of the provisions of the charter of the city, and the power there conferred upon the common council “ to provide for and regulate the lighting of the streets and the protection of the public lamps,” and the argument was that as the employment of' some person for the purpose specified was proper and lawful, and the compensation was not extravagant, the pecuniary result to-the taxpayer was the same whether the employee passed the civil service examination or not, and there was no waste of or injury to the public funds. This construction overlooks the illegal character of the official act contemplated, ignores thó civil service law, and justifies its violation.

That it cannot prevail is too plain to need argument to controvert it. Precisely the same question was presented and overruled in the case of Rogers v. Common Council of Buffalo, 123 N. Y., 173; 33 St. Rep., 55, and while not argued hy counsel in this court, was raised by the findings and exceptions and involved in the decision.

That cannot be legal which is forbidden by law, and in respect to the legality of a contract no distinction is apparent between one the subject matter of which is not within the power of ikecommon council, and one within its power but attempted to be made with a person with whom the common council is forbidden by law to contract. The disqualification under the civil service law applies not only to the individual who has not passed the-requisite examination, but also to the city itself. It cannot employ or receive into its service a person not eligible'under the law.

Section 8 of the act, as amended by chap. 410 of the Laws of 1884, provides that after the termination of three months from the passage of that act “ no officer or clerk shall be appointed and no person shall be admitted to or be promoted in either of said classes ” (in the public service of the city) “ until he has passed an examination or is shown to be exempted from such examination in conformity with such regulation,” and in the presence of that plain provision of the statute it is idle to argue the question of the power of the common council to employ as a clerk or subordinate officer one who has not passed the examination required by the regulation prescribed by the mayor of the city.

The second ground adopted by the general term is equally untenable. A formal contract between Belknap and the mayor in which should be set forth the specific duties he was to perform, as they were enumerated with much detail in the resolution of December 20th, could not change his relation to the city or transform an ordinary clerk into an independent contractor.

At the time of the adoption of that resolution he had been rendering service to the city for more than a month under an employment by the lamp committee pursuant to the resolution of November 1st heretofore referred to, and his contract was to be for the same service and at the same wages as specified in the resolution of December 20th, and was to cover the past services and the back pay.

He was under both resolutions an assistant to the lamp committee and" his duties were wholly clerical His employment fell within part 2 of schedule B. of the mayor’s regulations, and neither the common council nor the mayor had any power to employ him unless his name was certified by the board of examiners. His admission into the service of the city was plainly illegal and the attempted contract created no legal liability on the part of the city, and any payments made to him by the city officers under that employment would have been a waste of the city’s funds.

The order of the general term must be reversed, and the judgment of the special term affirmed, with costs.

All concur.


author: Vann, J.

text:
    Hedwig Blaechinska, Resp’t, v. The Howard Mission & Home for Little Wanderers, App’lt.

      (Court of Appeals, Second Division,

      Filed January 20, 1892.)

    1. Negligence—Husband and wife.
    Where a wife has been accustomed to receive compensation for work done for her husband outside of her household duties, she not having any separate estate or business, this cannot be taken into consideration by the jury in determining the amount of damages in an action for injuries to her caused by negligence. Such consequential damages for loss of her services should be recovered by her husband in a separate action brought in his own name.

      2. Husband and wife—When wife cannot sue him for services.
    A wife cannot hire out to her husband to work in his store or factory, and compel him to pay the price agreed upon for her services.

      Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment, entered upon a verdict and also affirming an order denying a motion by the defendant for a new trial.
    The plaintiff, a married woman, brought this action to recover from the defendant, a charitable corporation, the damages that she claims to have sustained through its alleged negligence in maintaining a broken cover over a coal hole in a public sidewalk,, which caused her to fall and break her arm. The pleadings presented the issue as to the negligence of each party and the jury rendered a verdict in favor of the plaintiff for five hundred dollars.

      Horace II. 0hittenden, for app’lt; Ezehiel Fixman, for resp’t.

       Reversing 31 St. Rep., 159.

   Vann, J.

Upon the trial of this action the plaintiff testified that at the time she was injured she was living with her husband, a custom tailor, for whom she worked as a seamstress. She was then asked by her counsel :• “ Were you in receipt of a salary from him,” and under objection answered: “Yes, I received a salary of five and six dollars a week and I did all the housework and now I can’t do it and I must have help. I used to do very good tailoring, but I can’t do it now.”

On her cross-examination, she testified that she used the money thus earned by her for the children and the general support of the-family. It did not appear that she had any separate estate or business. The court charged the jury that the plaintiff, if she could recover at all. was entitled “ to recover for the loss of wages which she has sustained.” 'The exceptions taken by the defendant to these rulings present the only question that we are asked to decide on this appeal. The learned general term affirmed the judgment of the circuit on the ground that the money which the plaintiff had been accustomed to receive from her husband for services rendered outside of her household duties was her own property, and that the loss of the salary could be given in evidence as an element of damage the same as if she had been working for a stranger. The only cases cited in support of this conclusion are Brooks v. Schwerin, 54 N. Y., 343, and Reynolds v. Robinson, 64 id., 589.

The enabling act of 1860, Laws 1860, chap. 90, as amended by Laws 1862, chap. 172, makes separate property out of that which a married woman “ acquires by her trade, business, labor or services, carried on or performed on her sole and separate account.” As the husband is entitled to the services of his wife at common law, it has uniformly been held that the statute does not apply to. labor performed by her for him in his household, even if it is of somewhat extraordinary character. Reynolds v. Robinson, 64 N. Y., 589; Coleman v. Burr, 93 id., 17.

But the husband’s right to the services of his wife is not limited to those performed for him in his house, for when she works for him out of doors upon his farm she is entitled to no pecuniary compensation, and his written promise to pay her therefor is without. consideration. Whitaker v. Whitaker, 52 N. Y., 368, 371. When she works with her husband for another and their joint earnings are used to support tlie family, if there is no special contract that she is to receive the avails of her labor, they belong to him and he is entitled to recover their value. Birkbeck v. Ackroyd, 74 N. Y., 356; S. C., 11 Hun, 365; Beau v. Kiah, 4 id., 171.

Until recently, the power of a married woman to make general contracts not relating to labor to be “ performed on her sole and separate account ” depended upon the act of 1860, and the possession of a separate estate, or engagement in a separate business, was essential to their validity, although she might become liable through her representations by estoppel. Linderman v. Farquharson, 101 N. Y., 434; Frecking v. Rolland, 53 id., 422; Corn Exchange Ins. Co. v. Babcock, 42 id., 613; Bodine v. Killeen, 53 id., 93.

In 1884 her powers were amplified so that she may now enter into contracts to the same extent, with like effect and in the same form as if unmarried, whether such contracts relate to her separate estate or not; but this enlargement of her rights does not extend to any contract between herself and her husband. Laws 1884, chap. 381.

She has further been authorized by statute to convey lands directly to, and to accept conveyances directly from, her husband without the intervention of a third person. Laws 1887, chap. 537.

Under the act of 1860 she could contract with her husband in relation to her separate estate, for as to that she stood at law on the same footing as if unmarried.” Noel v. Kinney, 106 N. Y., 74, 78; 8 St. Rep., 575; Stanley v. Nat. Union Bank, 115 N. Y., 122; 23 St. Rep., 966; Manchester v. Tibbetts, 121 N. Y., 219; 30 St. Rep., 721; Suau v. Caffe, 122 N. Y., 308; 33 St. Rep., 506; The Third National Bank of Buffalo v. Guenther, 123 N. Y., 568; 34 St. Rep., 478; Owen v. Cawley, 36 N. Y., 600; Bodine v. Killeen, 53 id., 93: Frecking v. Rolland, id., 422; Knapp v. Smith, 27 id., 277; Seymour v. Fellows, 77 id., 178.

The contract, in Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep., 449, was doubtless regarded as not relating to the separate estate of the wife, and on this basis it is not in conflict with the authorities cited above.

But while she can thus contract with her husband with reference to her separate property, can she make a binding agreement with him as to her own services, to be rendered outside of her household duties and having no connection with a separate business or estate ? In other words, can she hire out to him to work in his store or factory, and compel him to pay the price agreed upon for her services? If she can, it follows that the plaintiff was entitled to her earnings under the contract that may be implied from the payment of wages to her by her husband, and her ability to earn having been impaired by the negligence of the defendant, the fact was properly proved before and submitted to the jury. Otherwise, the evidence objected to was improperly received and it was error to instruct the jury that they might consider it in assessing the damages. As a man can-mot make a valid contract to pay his wife for extraordinary services rendered in his household, or for working on his farm, how can he make a valid contract to pay her for helping him make clothes in' his business as a custom tailor ? What basis is there for any distinction? Does the statute, which so modified the common law as to give to the wife her earnings from her own labor performed on her “sole and separate account,” contemplate that services for her husband can be performed on her sole and separate account,” unless they have some relation to a separate estate? Under the rule laid down in Coleman v. Burr and Whitaker v. Whitaker, supra, the words “sole and separate account,” as used in the statute, cannot mean simply an election on the part of the wife to work for her own benefit, regardless of whom the work is done for. In those cases her election to work for herself, although manifest, did not take the contract out of the common law rule. In deciding Whitaker v. Whitaker, the court, used this significant language: “If a wife can be said to be entitled to higher consideration or compensation because she labors in the field instead of in her household * * * the law makes no such distinction. It never has recognized the light to compensation from her husband on account of the peculiar character of her services.” It seems to be the policy of the legislature, as indicated by recent enactments, to relieve every married woman of the disability of coverture in contracting with any one except her husband. As to him the restriction is continued, except that the formality of conveying real estate through the medium of a third person is no longer required. The object of the legislature was probably to protect the marital relation, as well as to prevent the perpetration of frauds upon creditors. Every experienced observer realizes that an unlimited right on the part of the wife to contract with her husband would afford an easy cover for fraud and would be a perpetual menace to creditors.

The enabling statutes do not relieve a wife of the duty of rendering services to her husband. While they give her the benefit of what she earns, under her own contracts, by labor performed for any one except her husband, her common law duty to him re-, mains, and if he promises to pay her for working for him, it is a promise to pay for that which legally belongs to him. The fact that he cannot require her to perform services for him outside of the household does not affect the question, for he could not require it at common law. Such services as she does render him, whether within or without the strict line of her duty, belong to him. If he pays her for them it is a gift If he promises to pay her a certain sum for them, it is a promise to make her a gift of that sum. She cannot enforce such a promise by a suit against him. We think the rule is well stated by a recent writer when he says that the enabling acts do not apply to the labor performed by a married woman “ for her husband, or bestowed on his business, or in his household, or in his care, or in the care of his family, for in such cases it is her marital duty, and he is not liable to pay for the services of his wife.” Kelly’s Contracts of Married Women, 153. These views are not in conflict with Brooks v. Schwerin, 54 N. Y., 343. The plaintiff in that case, a married woman, lived with her husband, and took charge of the family. Having been injured by the negligence of the defendant, she was allowed to show, under objection, on the trial of an action brought to recover damages therefor, that she had worked out and received ten shillings a day. The court refused to charge that she could not recover for her time and services while disabled. It was held by three out of the five commissioners who participated in the decision that the evidence was competent, and that the request was too broad and was properly refused for that reason.

The distinction between that case and this is that in the former the wife worked for a third person, while in the latter she worked for her husband. When she worked for a stranger, it was on her sole and separate account, and the enabling act protected her contract. When she worked for her husband, it was on his account, and the statute did not apply.

In Filer v. The N. Y. Central Railroad Company, 49 N. Y., 47, a leading case upon the subject, it was held that a wife, not engaged in business or in performing labor on her sole and separate account, when injured by the wrongful act of another, could not recover consequential damages resulting from her inability to labor. The court said: “Her services and earnings belonged to her husband and for the loss of such services, caused by the accident, he may have an action. * * * She is authorized to sue for any injury to her person or character, the same as if she were sole. This is for the direct injury and for direct and immediate damages, unless she is, on her own account and for her own benefit, engaged in some business in which she sustains a loss.”

While we have considered, we have not cited, many cases that bear more or less directly upon the general subject, but have' referred to such as declare, limit and illustrate the law relating to the capacity of a married woman to contract with her husband in relation to her own services. Applying the law, as we gather it -from the statute and the manifold decisions, to the facts of this case as now laid before us, we think that the plaintiff is entitled to recover actual damages only, and that the consequential damages for loss of her services, both in the • house and in the shop, should be recovered by her husband in a separate action brought in his own name. The damages for the injury to her person belong to her, because the statute has given them to her, but the damages for the loss of' her services belong to him, because the common law gave them to him and the statute has not taken them away.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur.


author: Peckham, J.

text:
    William H. Bossout, Resp’t, v. The Rome, Watertown & Ogdensburg R. R. Co., App’lt.

      (Court of Appeals,

      Filed January 20, 1892.)

    Appeal—Inquisition after order for judgment absolute—Motion tc> SET ASIDE.
    The granting of a motion to set aside an inquisition to assess the dañiages in order to render effectual the judgment absolute directed to be entered by the court of appeals, in accordance with a stipulation of defendant, made on the ground of the mere admission of improper evidence, rests largely in the discretion of the court and if refused as not tending to the ends of justice, appeal cannot be taken to this court.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment for plaintiff.

      Edmund B. Wymi, for motion; John W. Hogan, for opposed.

       See 40. St. Rep., 987.

   Peckham, J.

The plaintiff commenced this action to recover damages for an injury alleged to have been caused him through the negligence of the defendant Upon the trial the plaintiff was nonsuited. He appealed from the judgment of nonsuit to the general term of the supreme court, and after a hearing that court reversed the judgment and granted a new trial. From the order granting such new trial the defendant appealed to the court of appeals and stipulated that if the order were affirmed, judgment absolute should be rendered against it

The order was affirmed in this court and. judgment absolute was ordered to be entered against defendant in accordance with its stipulation. The remittitur from this court was filed in the supreme court and our judgment was made the judgment of that court

In order to render the judgment thus entered effectual, and by virtue of § 194 of the Code, the court at special term ordered that the damages to which the plaintiff was entitled in the action should be assessed by a jury under the direction of the court at the next circuit, and for that purpose it was ordered that the cause should be placed on the circuit calendar.

In obedience to the direction of the court the assessment of damages was had at the Jefferson circuit, and after hearing evidence on that question from both sides it was submitted to the jury, which assessed the damages for the plaintiff at the sum of $10,000.

Thereupon, as the record states, the counsel for the defendant moved on the judge's minutes for a new trial on the ground that the damages were excessive, that the verdict was unsupported by and contrary to the evidence, and contrary to the law of the case, and upon all the exceptions taken by defendant upon the trial of the action. The court denied the motion and the defendant excepted. The plaintiff then entered what is termed a judgment upon such assessment of damages for the amount of the verdict and the costs, from which, and from the order denying the defendant’s motion for a new trial on the judge’s minutes, the defendant appealed to the general term. That court affirmed both judgment and order, and the plaintiff entered a judgment of affirmance accordingly. From this last so called judgment the defendant has appealed to this court, and the plaintiff now moves to dismiss the same on the ground that it is not appealable.

Y7e think the motion should be granted.

The judgment entered upon the filing of the remittitur from this court was an absolute and final one, which fixed irrevocably the liability of the defendant to pay the damages sustained by the plaintiff consequent upon the negligent act of the former.

The proceeding to assess the damages thus sustained was taken in order to render such final judgment already entered effectual. It was a proceeding based upon that judgment and undertaken pursuant to the provisions of § 194 of the Code. It was not the trial of an ordinary action at the circuit and subject to the general provisions of the Code in that behalf relating to a review of such trial. It was in terms, and under the above cited section, an assessment of damages merely, which might be had in the court of original jurisdiction, but not necessarily at circuit.

The practice in a proceeding to assess damages in such, cases is not specially laid down in the Code, and we must look at the nature of the proceeding itself to determine whether or not the judgment entered upon the verdict is appealable to this court. The effect of the affirmance of the order granting a new trial and the entry of judgment absolute thereon in the supreme court was ' the same as if the whole of plaintiff’s action had. been admitted and a default had occurred, and the sole question left was as to the amount of the damages sustained by the plaintiff.

Under the old practice where the amount of the damages could not be adjusted without an inquiry, a writ of inquiry to assess the damages was issued and directed to the sheriff of the county where 0 the venue was laid, and stating that “ because it is not known what damages the plaintiff hath sustained ” the sheriff is coin- ' manded to inquire of the same by a jury of twelve men, etc. Graham’s Practice, 2d ed., 794; 1 Tidd’s Prac., 570, 573, 582, Am. ed., 1840.

Notice to the defendants, if they had appeared, was to be given and the writ was executed under the direction of the sheriff. It could, however, under special circumstances, be executed at the circuit and under the direction of the court. Now, by the provisions of § 194 of the Code, it would have to be executed in the court of original jurisdiction. Its character, however, is not thereby changed, and the court, when executing an assessment of damages, proceeds in a manner similar to the taking of an ordinary inquest. There is nothing which compels its execution at the circuit, although, for purposes of convenience, it is better to so execute it, as a jury is there already provided. Before the Code such irregularities as occurred during the execution of the inquisition could only be taken advantage of by motion to set aside the proceedings and not by writ of error.

The principles upon which the court would interfere with the result of an inquisition were well settled by the old supreme court. A writ of error did not lie, because it was not an ordinary trial in court, and the review thereof was not provided for as upon a bill of exceptions. If improper evidence were admitted, and in some other cases, if it appeared that injustice had been done, but not otherwise, the court, on motion, would set aside the inquisition. Ward v. Haight, 3 Johns. Cas., 80; Sharp v. Dusenbury, 2 id., 117. In the former of above-cited cases the court observed that such assessment was intended to inform the conscience of the court, and the court will not interfere unless it appear that injustice has been done; or, in other words, unless the ends of justice require it. 1 Tidd’s Pr., supra; Graham’s Pr., 794, 800, 801.

The .result of our examination is to show that the proceeding for the assessment of damages in order to render the judgment absolutely effectual, as ■ provided for in the Code, is one which is not like a trial of an action at circuit, and the rules for reviewing the trial of an action do not prevail in regard to this proceeding. There is no provision for making a case and exceptions, or for a motion for a new trial on the judge’s minutes. After the completion of the trial, a motion may be made to set aside the inquisition, but the motion will not be granted upon the same grounds as. a new trial would be for the mere admission of improper evidence. It is a motion addressed largely to the discretion of the court in which the proceeding takes place, and when refused as not tending to'the ends of justice, a judgment entered upon the inquisition does not become one which is reviewable by the court upon legal grounds. There would seem to be no doubt that tinder the well established rule an appeal might be taken from the order of the special term refusing the motion to set aside the inquisition to the general term of the court, as the judicial discretion exercised by the court in granting or refusing the motion is not confined to the special term.

But we do not see that any provision is made for an appeal to this court from the order or judgment of the general term in such a proceeding. There is no provision for taking exceptions upon the trial of such an inquiry, and the motion to set aside is not founded upon exceptions, although of. course it would not be granted if it appeared that the evidence which was claimed to be illegal had been admitted without objection. Our province is to review errors of law, and not the exercise of discretion by other tribunals. Lawrence v. Farley, 73 N. Y., 187.

The character of our jurisdiction is such as to confine us to the review of questions of law only unless specially otherwise authorized. Id. Section 1337 of the Code does not confer jurisdiction. That provides for a review of an order affecting a substantial right, and not resting in discretion. Questions of law only are by this section to be reviewed.

The granting of the motion being addressed to the sound discretion of the court below, we cannot interfere unless an abuse of discretion is shown which in our judgment should call upon us to interfere. We have looked through the return on file, and can see that the case discloses nothing of the kind.

The motion to dismiss the appeal should be granted, with costs.

All concur, except O’Brien, J., taking no part.


author: Earl, J.

text:
    The Mutual Life Insurance Company, of New York, App’lt, v. Mathias Suiter et al., Resp’ts.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Evidence—Forgery—Comparison op handwriting.
    Upon an issue 6f the genuineness of signatures to a deed, in which the appellants,as part of the consideration for the purchase of certain premises, assumed a mortgage thereon, the appellants testified that they never signed nor accepted said deed. It was claimed that Mary 8., one of the defendants, had signed for herself, her sister and mother. The deed to appellants only conveyed one-half the farm, while the value of the whole was not more than the mortgage assumed. The court restricted the proof by comparison of documents to the signature of Mary to the answer in this action and refused to allow comparison to be made with a signature written by her two years before, or with signatures and writing made by her twelve years prior. Held, error.
    2. Same.
    The exclusion of such evidence could not be said to be harmless. It was rendered competent by chap. 36, Laws 1880, as amended by chap. 55, Laws 1838, and whatever the views of the trial judge may have been as to its value or safety, he should have received it.
    Appeal from judgment of tlie supreme court, general term, fourth department, reversing judgment of foreclosure in favor of plaintiff rendered at special term.
    Sometime prior to April, 1876, Mathias Suiter owned a farm in Onondaga Go., and he died intestate leaving his widow, the defendant, Ann Suiter, and his children, the defendants Mathias Suiter, George Suiter,' Mary Suiter, Ann Suiter, and Barbara. Shepp, his only heirs at law. On the 12th day of April, 1876. the widow and daughters conveyed their interest in the farm to the sons Mathias and George by a quit claim deed, containing, however, the following reservations; “This conveyance made subject to the support in every respect, maintenance, care, medical attendance and clothing of Ann Suiter, the widow of Mathias Suiter, deceased, and Ann Suiter, the daughter suitable and proper to their station in life, to be furnished by the parties of the second part, their heirs, executors, administrators or assigns, to them during their natural lives and the life of the survivor of them, which support in every respect, maintenance, care and medical attendance and clothing of the said Ann Suiter, the mother, and Ann Suiter, the daughter, is hereby made a charge and lien upon said, premises during their natural lives and ihelife of the survivor of them. And this conveyance is also hereby made subject to the payment by the parties of the second part, their heirs, executors, administrators and assigns, upon the decease of Ann Suiter, the mother, of the sum of $500, without interest, to Mrs. Barbara Shepp, or her legal heirs, and the sum of $500" to Mary Suiter, or her legal heirs, which payments are hereby made a charge and lien upon said premises as a .part of the purchase price thereof. All of which covenants, agreements, charges and conditions said parties of the second part hereby assume and covenant and promise to fulfill and perform.”
    Subsequently, on the 27th day of June, 1887, Mathias Suiter and George Suiter borrowed of the plaintiff the sum of $3,500 upon their bond and a mortgage upon, the farm executed by them and the wife of Mathias. This mortgage contained a covenant warranting the quiet and peaceable possession of the farm by the mortgagee. At the time of giving the mortgage the mortgagors, Mathias and George, made affidavit that the premises were unincumbered. The search made at the time of the loan by the plaintiff showed the quit claim deed above mentioned, but did not disclose or mention the reservation made by the grantors therein. After default by the mortgagors in the payment of interest on the mortgage, the attorney for the plaintiff discovered the reservation in the quit claim deed, and that the title of Mathias and George was defective, and then he devised a scheme to perfect the title in the mortgagee by subordinating the interests of the widow and daughters in the farm to the lien of the mortgage, and for that purpose he prepared a quit claim deed of the premises, dated Uovember 1,1888, to be signed by Mathias Suiter and wife as grantors in form to convey his interest in the farm to the widow and the daughters, Ann and Mary. That deed was. executed by Mathias Suiter and his wife as grantors, and appears also to have been executed and acknowledged by the grantees, and it contains this clause: “ All .that tract or parcel of land * - * * being that part of lot 46, Manlius, M. Y, which was owned in his lifetime by Mathias Suiter * * * and the same premises mortgaged to the Mutual Life Insurance Co., of Mew York, by Mathias Suiter and wife and George Suiter, dated June 27, 1887, f< r $3,500, and recorded July 27, 1887, in Onondaga county clerkjs office, in book Mo. -239 of mortgages, at page 144, and the parties of the second part hereby assume and agree to pay said mortgage as part of the consideration of this conveyance

    Upon this deed the names of Ann Suiter, widow, and Ann Suiter and Mary A. Suiter, the daughters, were all signed in the same handwriting, the two former by a mark.
    In August, 1889, the plaintiff commenced an action for the foreclosure of the mortgage, claiming that by the deed of Movember 1, 1888, the interests of the defendants, the widow and two daughters, had become subordinated to the lien of its mortgage, and they answered in the action and denied the execution of that deed. ' Upon the trial they claimed that their signatures to the deed were forgeries, and that the signature of the notary public who appeared to have taken their acknowledgments was a forgery; and whether or not they were forgeries was the main question litigated upon the trial. The trial judge held that the signatures were genuine, and gave judgment of foreclosure in favor of the plaintiff. Upon appeal" by the defendants to the general term that judgment was reversed, and then the plaintiff brought this appeal.

      William G. Tracy, for app’lt; George Í1. Sears, for resp’ts.
   Earl, J.

At the date of the quit-claim deed claimed to • have been executed by Mathias and his wife to the widow and two daughters, and also by them, the widow was upwards of seventy-three years old, and the daughter Ann was a cripple, having been born without arms, and neither she nor her mother could write. The whole farm at that time, only one-half of which was conveyed to them by Mathias and his wife, was probably not worth more than the amount, of the mortgage. It does not appear that the widow and two daughters had any benefit whatever from the money loaned upon the mortgage, or that they had anything whatever to do with the loan. At the time of the execution by Mathias of the deed he was not living with his mother and sisters, and had not been for years; and it does not appear what his relations with them were. It is in the highest degree improbable that the widow and two daughters would consciously and intelligently, for a conveyance of one-half of the farm, assume the payment of the mortgage subordinating their interests in the farm, their only means of support, to the lien of the mortgage; and it would seem that very strong proof ought to be produced that they were fairly and honestly treated and advised before such an instrument should be given operation against them.

Upon the trial of the action the claim of the plaintiff was that ■the defendant Mary A. Suiter had written her own signature and the signatures of her mother and sister Ann to the deed, and that then her mother and sister had each made her mark. She testified positively that she did not write the signatures; that she did not acknowledge the deed, and that she never heard of the deed until about the commencement of this action, when it was found in the county clerk’s office by her attorney. The widow and the daughter Ann also testified that they did not execute the deed or acknowledge it. The defendants called expert witnesses who testified by comparison of the signatures on the deed with the signature of Mary A. Suiter to the verification of her answer in this action, that the signatures upon the deed were not written by the same person who wrote the name to such verification. The plaintiff called an expert witness who testified that he believed that the three signatures were written by the same person who wrote the name of Mary A. Suiter to the affidavit upon the answer to the complaint; and the plaintiff also gave some evidence of statements made by the widow, and also upon her cross-examination, tending to show that the deed was actually executed and delivered to her.

While the defendants were putting in their evidence upon the trial, and for the purpose of having a larger number of Mary A. Suiter’s genuine signatures in evidence for comparison with the alleged forged signatures, she produced a signature which she said she had written two years before; and the defendants’ counsel offered to put it in evidence. Plaintiff’s counsel objected to it as incompetent, immaterial and improper, and on the further ground that it was written with a pencil. The trial judge then remarked: “ I don’t think the signature of a party written on a loose scrap of paper at some time or another should be put in evidence. I will sustain that objection. It would be a dangerous rule to adopt. I will sustain the objection on that particular piece of paper.” The same witness then produced two of her signatures written, one fourteen and the other twelve or thirteen years before the trial, and testified that she had written them at the times mentioned; and defendants’ counsel offered to put them in evidence for the purpose of comparison.

Plaintiff’s counsel objected to them on the same grounds as before, and the trial judge said: “I will exclude the evidence and give you an exception. I don’t think this evidence is either admissible or safe.” It will be observed that these three signatures were not excluded upon the ground that they were not sufficiently proved, or that the judge was not satisfied that they were genuine. We agree with the general term that these signatures should have been received in evidence for comparison. They would have given to the expert witnesses a wider range for comparison. As it was, the only signatures they had for comparison with the alleged forged signatures were the signatures of Mary A. Suiter to her affidavit upon the answer, and the signature of Ann Suiter to her affidavit upon her answer in this action, which was written by Mary A. Suiter. So that there was in evidence for comparison only one signature of the name of Mary A. Suiter, with which the experts could compare the alleged forged signature. We think the range of comparison was altogether too. narrowly limited, and that it could not be. thus' arbitrarily confined. It cannot be said that the exclusion of this evidence was harmless. It was rendered competent by the act, chapter 86 of the Laws of 1880, as amended by the act, chapter 555 of the Laws of 1888, and whatever the views of the trial judge may have been as to its value or safety, he should have received it

For the rejection of this evidence the judgment was properly reversed at the general term, and its order should be affirmed and judgment absolute rendered against the plaintiff, with costs.

All concur (Finch, J., in result), except Peckham, J., not .sitting. •

       Affirming 33 St Rep., 553.


author: Andrews, J.

text:
    Evalina K. Hollins, App’lt, v. W. Jennings Demorest et al., Resp’ts.

      (Court of Appeals,

      Filed January 20, 1892.)

    Basement—Alleyway—‘.‘To be kept open.”
    A deed poll executed in contemplation of a sale of lots on the block to which it related, reserved a fifteen foot alley for the passage of specified conveyances to the lots, stated that a proper and suitable gate with lock and key should be placed at the street entrance of the alley, the latter to be used as a private passageway and to be kept open * * * “for the use and purpose aforesaid and no other.” Held, that the grantees of the lot could not be restrained from building over the alley so long as a clear space was left for the way sufficiently high and wide for the passage of the conveyances referred to in the deed.
    Appeal from judgment of the New York common' pleas, general term, affirming judgment of trial court in favor of defendants.

      Charles Francis Stone, for app’lt; James R. Marvin, for resp’ts.

       Affirming 38 St. Rep., 1023.

   Andrews, J.

The construction put by the courts below on the deed poll, if justified, is a decisive answer to the action.

The defendant Austin has title in fee to the way over which the building erected bv Demorest as lessee has been constructed. The way laid out on the map filed with the deed poll in 1886 extended from the south side of Seventeenth street, in rear of lots 7, 6 and 5, but the fee of the land included therein passed with the lots, from which the way was taken, to the several grantees. The owners of the respective lots held their titles to the way in subordination to the purposes for which the way was laid out and dedicated. They could do nothing to interfere with those purposes, but there was no restriction upon their right to use the land above or below the surface of the way as they might choose, provided only that such use was not inconsistent with the easement in the way reserved in the deed poll to the owners of the respective lots.

The deed poll states with great distinctness the purpose and intent of the way. It declares that “ fifteen feet in width across the rear of the lots 1 and 2 on the said map shall be subject to the 2'ight of passage for horses, carriages and carts, for the private ■convenience of the owners of the lots 1, 2 and 3, on the said map, and their heirs and assigns, and their tenants respectively, actual occupants of the said lots, for a passage from the rear of said lots to and from Sixteenth street” It contains a similar provision in respect to the way from Seventeenth street in rear of the lots 7, 6 and 5. It is also declared that at the “ entrance of each of the .said ways respectively into the street, a proper and suitable gate, with lock and key, is to be kept and maintained and the passage kept open and in proper order and regulation at the joint expense of the owners and occupants, from time to time, of the lots entitled to use the said ways, each of whom shall be entitled to a key to the said gate for the purpose of opening and closing the same, as a private passage way for the use and purpose aforesaid and no other.”

The deed poll was executed in contemplation of a sale of lots on the block to which it related, between Sixteenth and Seventeenth streets, for residence purposes. The deed poll contains careful restrictions as to the use of the lots, so as to prevent their occupation for any noisome trade or business. The instrument shows that it was contemplated that the purchasers of the lots on Fifth avenue might desire to erect private stables in rear of their lots, and the reservation of the ways was designed to afford access from the street to the stables and to the rear of the lots. The structure erected by Demorest does not interfere with this use of the way for the purposes expressed in the deed poll, namely, for the passage of horses, carriages and carts to and from Seventeenth street It is claimed that the clause in the deed poll that the passage was to be “kept open,” can only be satisfied by permitting it to remain open to the sky, and that light and air for the benefit of the several lots was one of the objects intended by the reservation of the passage ways. But the deed poll makes no reference to this purpose.

It docs not reserve an open way for general use, but expressly limits and defines the uses for which the ways are intended, and to which they were to be appropriated. They were to be open ways “for the use and pui'pose aforesaid,.and no other.” The practical construction of the deed poll by the plaintiff and his grantor, who owns the lot opposite the end of the way, is adverse to the claim now made that one of the objects of the way was to furnish light and air to the adjacent premises. The way in rear of lot 5 owned by the plaintiff has been closed and a building erected thereon, completely excluding access to that part of the way, and preventing light and air from passing over the same to the other lots.

The way in rear of the defendant’s lot is not closed, but over it, fourteen feet above the surface, a building has been erected, supported by two iron posts set on the easterly edge of the way, but leaving a clear space for the way, exceeding fifteen feet in width. It is not claimed that the structure of the defendant interferes with the access to the plaintiff’s lot from Seventeenth street for “ horses, carriages and carts,” through and along the way.

The lots on Fifth avenue have become business property. No stables have been erected on the lots adjacent to the way. The purpose of the deed poll is fully satisfied by the way in rear of the defendant’s lot as it now exists. We concur in the view of the courts below that the deed poll did not restrict the owner of lot 7 from building over the way.

The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur; Peckham, J., in result


author: Gray, J.

text:
    The People ex rel The American Contracting & Dredging Co., App’lt v. Edward Wemple, Comptroller, Resp’t.

      (Court of Appeals,

      Filed January 20, 1892.)

    1. Taxes—Manufacturing Company.
    The plaintiff was organized under the Act of 1848, and was engaged in-dredging the Panama canal, with an office in New York city for the use of its officers and employees and kept its hank accounts there. Held, that it was a domestic corporation and was liable to pay a tax upon its franchise and business, to be measured by the amount of its capital stock found to be employed in this state.

      2. Same.
    The words of the statute “ doing business in this state ” have reference® only to foreign corporations.
    3. Same.
    The relator will be presumed to have employed some of its capital in the city of New York.
    4. Same.
    Where a corporation is subject to taxation under the act, the determination of the comptroller as to the assessment and taxes, unless clearly shown to have been erroneous, should not be disturbed.
    Appeal from judgment of the supreme court, general term, third department, affirming determination of comptroller made on application for revision and readjustment of accounts for taxes against relator for the years 1887, 1888 and 1889.

      Adrian II. Joline, for app’lt; Chas. F. Tabor, atty.-genl., for resp’t

       Affirming 38 St. Rep., 17.

   Gray, J.

The relator, a domestic corporation, organized and existing under the manufacturing act of 1848, appeals from an order of the general term of the supreme court, which affirmed the determination of the comptroller of the state upon an application to him for a revision and readjustment of the account of taxes settled against the relator pursuant to the provisions of chapter 542, Laws of 1880, as amended by chapter 861, Laws of 1881, chapter 151, Laws of 1882, and chapters 859 and 501, Laws of 1885. The basis of the application was the allegation that the previous settlement by the comptroller of the account for taxes for three years ending November 1st, 1889, included taxes which could not legally be demanded. The points raised by the relator were that as it was not doing business in this state during these years, it was not subject to taxation, and that, as no part of its capital was employed here, there was no basis for the tax. The facts are undisputed and show that the relator was incorporated in 1882, with a paid up capital of $2,000,000, and, by its certificate of incorporation, was formed for the purpose of carrying on some part of its business out of the state of New York, but that the operations of said corporation are to be conducted and carried on in and from the city, county and state of New York, which is to be the principal place of business of the said company.” During the period in question, the company was engaged in dredging on the Panama Canal. It had an office in New York city for the use of its officers and employees, and it kept bank accounts there. It made annual reports to the comptroller, as required by the law; from which it appeared that dividends were annually declared and paid upon the capital stock, amounting in 1887 to forty-two per cent; in 1888 to two hundred and twenty-four per cent, and in 1889 to seven per cent. The comptroller in 1890 settled and adjusted an account of taxes against the relator, based upon the dividends declared upon the amonnt of capital stock employed in this state during the years mentioned. This amount he found and determined from figures showing the average monthly balances in the New York banks, and the expenditures for salaries and other matters connected with the maintenance of its office in New York city.

Certain objections are presented by the attorney general to the relator’s proceeding through the writ of certiorari herein, which are based upon the provisions contained in certain sections of the various acts of 1880,1881 and 1885. We think, however, that the sections added by the act of 1889 (chap. 463), have conferred the power upon the supreme court to review in that way the action of the comptroller. The language of § 20 of the act is general that his action “ upon any application made to him by any person or corporation for a revision and settlement of accounts,” may be reviewed, etc. Unquestionably there results from the several legislative enactments in amendment of the act of 1880, upon the subject of procedure for a review, considerable confusion, and carelessness in legislation is strongly evidenced. But, unless we give to the sections added by the latest act of 1889 the effect of authorizing the proceeding of the relator here, they would be quite meaningless and purposeless. As the question is fully dis■cussed in the opinion of the general term below, and also in the opinion in the case of The People ex rel. The Brush, etc., Company, decided at this term, 42 St. Rep., 272, it need not be further dwelt upon now.

Concerning the main question presented by this appeal, we entertain no doubt. The relator, being a domestic corporation, was liable to pay a tax upon its franchise and business, to be measured by the amount of its capital stock found to be employed in this state. By § 3 of the act every corporation is made subject to such a tax which is incorporated or organized .under the laws of this state; or which is incorporated under the laws of any other state or country and is doing business in this state. The quali-' fying words “ and doing business in this state ” have reference ■only to foreign corporations. The appellant’s argument, that they prescribe a limitation upon the right to tax a domestic corporation, disregards their proper sense as gathered from their juxtaposition in the section, and it would import into the legislation a restriction upon the j urisdiction of the state to impose a tax upon ■domestic corporations for which there is no reason and which is not supported by authority.

As to corporations created under the laws of this state the' power to tax their franchises and business is undoubted and general ; but as to corporations which are created under the laws of another state, or country, jurisdiction for, taxing purposes is gained from the business which they do in this state and the tax' is one upon that business. Foreign corporations coming into this ' state for the purpose of doing some part of their corporate business here are placed under the obligation to bear some portion of the general burden of taxation, in return for the privileges and benefits enjoyed. The words of this section, which we are considering, may be said to be the recognition by the legislature of the limitation upon its powers, or upon the right to levy taxes with respect to foreign corporations. Taxation under the act as to such is limited to those “ doing business in this state,” and the tax is assessed upon that business.

In People v. Equitable Trust Co., 96 N. Y., 387, the defendant, against which this tax law of 1880 was sought to be enforced, was a private corporation, having an office in this state. It was there said of the tax that “ so far as § 3 imposed a tax upon corporate franchises, its operation must be confined to corporations created under our laws; and as to foreign corporations the tax is imposed solely upon business.” “ This tax,” Judge Earl in that case observed, “ upon the business of foreign corporations is a specific tax.” That is to say, that as a specific tax it may be imposed upon the business here of the foreign corporation, as upon any trade, avocation, or upon any specified article of personal property. What the legislature intended by the enactment in question, as to the corporations mentioned, was to impose not a property tax, but to assess all such, for the benefit of the state treasury, for the right of exercising the .privileges which the state granted to them. So long as the corporation in fact exercises its franchises, and does business, the state exacts from it the payment of a tax for the privilege of doing so. It is needless to discuss the power of the state to impose the tax. It is well-set-tied by frequent decisions that the power to tax is essential to the existence of the government and comprehends all objects within the jurisdiction of the state. The only limitation upon its exercise is such as may be constitutionally imposed.

The imposition, otherwise, is unrestricted as to subjects and amount and rests in the wisdom and in the sense of justice of the legislative body. Except in the case of a corporation whose powers of management and the exercise of whose chartered privileges may have been lawfully vested in another, every corporation described comes under the obligation to pay the tax levied under this law. What the language of the act subjects to its requirements are, quite plainly, such corporations as are in the full exercise of their particular privileges and hence are able to and there,fore should comply with. them. This subject, of the object and intent of the statutes of 1880 and 1881, was carefully considered by this court in the case of The People v. Home Ins. Co., 92 N. Y, 328, where it was distinctly held that the tax was upon the right of corporations to exercise the privileges conferred upon them, and that it was not a property tax. It was said there “ The amount of the tax' is dependent upon the business prosperity as evidenced by their capacity to declare dividends, instead of upon the value of the corporate property," and the proposition that the tax, by force of the provisions for its assessment by appraisement of the value of the capital stock, made it “ a tax upon capital stock and not upon franchise,” was denied. “We also think,” said Huger, Oh. J., in that case, “ it may safely be assumed that so long as a corporation continues business under its charter, the privilege of so doing is of some pecuniary value to it, and that there is no valid reason why the value of the capital stock may not be used as an element for determining the amount of tax levied upon franchise.” The corporation and the franchise are as distinct as are the substance and its attribute. The franchise of the corporation is the exclusive exercise of the rights granted. Kyd Corps., 15.

The legislation of 1880 and 1881 was the creation of a new system of taxation of corporations and provided a new method of regulating the contribution by them to the payment of state expenses by assessments, not upon property, but upon privilege and business. The scheme is a complete and independent one. It is made just and perfect in this respect by the declaration in § 8 that the corporations, joint stock companies and associations mentioned in the act as taxable shall thereafter be exempt from assessment and taxation for state purposes, except upon their real estate and as therein provided; but shall in all other respects be liable to assessment and taxation as heretofore. People v. The Gold & Stock Tel. Co., 98 N. Y., 67.

A consideration of the provisions of this law, framed so as to bring all the domestic corporations,, joint stock companies and associations described under the obligation to pay a tax into the state treasury, to be assessed upon their franchises and business, and exempting them from taxation otherwise for state purposes, except upon their real estate and as in the law provided, warrants the conclusion that the liability is in no sense restricted to such as do business in this state, and that a just measure of liability is arrived at in those cases where the capital stock is partially employed in this state, by fixing the basis for the tax by the amount which is employed here.

The relator being then subject to taxation under the act, the determination of the comptroller as to the assessment and taxation, unless clearly shown to have been erroneous, should not be ■disturbed. • This principle has been asserted in cases where it has been sought to review the decisions of public officers charged with the duty of determining the valuation of property for the purpose •of assessment and taxation and is applicable here. People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y., 581; People ex rel. Osgood v. Commissioners, etc., 99 id., 154; People ex rel. Panama R. R. Co. v. Commissioners, 104 id., 240; 5 St. Rep., 647.

There was sufficient evidence here upon which the comptroller ■could act in finding a basis for assessment.

The relator will be presumed to have employed some of its ■capital in the city of-New York; for there, according to its certificate of incorporation, was its principal place of business, and from there were its operations conducted; it kept bank accounts there and paid out moneys for matters connected with and more or less essential to the purposes of its incorporation; and if the comptroller fixed the amount of capital so employed here in the way he •did the company has little reason to complain of his account against it In the eye of the law, and, as matter of fact, some capital was employed here, and we cannot see that the comptroller erred'in his determination.

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

All concur.


author: Finch, J.

text:
    John B. Smith, Resp’t, v. William F. Lennon, App’lt. (2 actions)

      (Court of Appeals,

      Filed January 20, 1892.)

    Partnership—Evidence op.
    Proof that one person is to advance funds for the purchase of houses and he secured to that extent by mortgages on the property, and the other to furnish money for improvements, holding the title in his own name, both to share in the anticipated profits which might- be realized over and above the sums so advanced, does not establish a partnership.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of foreclosure and sale after trial of action at special term.

      S. Untermeyer, for app’lt; A. C. Fransioli, for resp’t.

       Affirming 37 St. Rep., 937, 989.

   Finch, J.

The sole ground of this appeal rests upon the proposition that the trial court erred in refusing to find that the parties were copartners in the purchase and ownership of the two houses and lots upon which the plaintiff’s mortgages were a lien, and in support of that proposition it is now urged that the defendant, Lennon, testified to the existence of such a partnership, and was entirely uncontradicted. I do not think his evidence goes so far, and if it does he is contradicted by all the proof produced which has been put in writing, and by every material fact and circumstance shown in the case.

The plaintiff’s theory was that the only partnership contemplated and agreed upon and described by that word was a sharing in the possible profits which might be realized upon a sale of the houses after the advance of purchase money had been paid back "to Meyer, and the expenditure for repairs had been restored to Lennon; that one was to advance funds for the purchase, and be secured to that extent by mortgages on the property, and the other to furnish money for improvements, holding the title in his own name; and both were to share in the anticipated profits which might be realized over and above the sums so advanced. I see nothing in Lennon’s testimony as to the conversations which preceded the writings which is at all inconsistent with that theory, or which established the broader fact of a partnership in the land as well as in the expected profits. Lennon says at the outset that Meyer proposed the enterprise thus: “I will go into partnership with you, Lennon; I will furnish the purchase money, and buy those ■ houses, and you furnish the money to put in the alterations,” and adds that his answer was: “ Will you put it down on paper, the general items of those remarks, and I will consider it over.” Thus no verbal agreement was made, but instead Meyer submitted a memorandum, the terms of which were later embodied in a written and formal contract, which both parties signed. All previous negotiations were merged in that instrument, which is not at all ambiguous, and which shows clearly that Lennon was to take the title and give mortgages to Meyer for the purchase money advanced, and that the only agreement which could be described as a partnership was to share in the possible profits over and above the advances made. In strict accord with this agreement the title was in fact taken by Lennon, he gave the two mortgages to Meyer, describing them correctly as given for purchase money, and when at a later period it was deemed advisable to add to the improvements, an endorsement was made upon the contract increasing the amount to be first paid before profits were realized.

It is true that at.a later period of his testimony Lennon represented Meyer as wanting the mortgages to secure his interest in the partnership, but even that expression, if ever used by Meyer, ■which the court was fully justified in disbelieving, is susceptible of the explanation that Meyer referred only to his advances, and had no reference to any other or different interest in the land. Be that as it may, at the most it merely raised a question of fact which very justly and properly has been decided against the •defendant.

Both judgments should be affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Wilfrid L. Herbert, Pl’ff, v. Bryan Lawrence, Def’t.

      (New York Common Pleas,

      Special Term,

      Filed October, 1891.)

    Attorneys—Power to bind client.
    ' The power of an attorney to hind his client in spite of contrary instructions from him is limited to those acts which conduce or tend to conduce to his success. He has no power to withdraw an answer without authority and thus virtually confess judgment.
    Motion by defendant to vacate judgment entered by default on May 7, 1877.

      Albert IL Atterbury, for def’t; Zábdiél S. Sampson, for pl’ff.
   Bookstaver, J.

This action was commenced to recover damages for an alleged assault committed on the 28th of August, 1874. The action was commenced on or about the 12th day of May, 1876, ,by the service of a summons and complaint upon the defendant. As appears from the papers, under the direction of his. father, he took these to Mr. Horatio F. Averill, who, on the 31st of May, 1876,- interposed an answer. Ho retainer was paid to Mr. Averill at that time or at any subsequent time, although he frequently wrote to the defendant for the same, and finally notified him that unless such retainer was paid by a certain time he would withdraw the answer. On behalf of defendant it is claimed that, none of these "letters ever reached him, having been sent to him at. his father’s address, and he, on account of differences between himself and his father, having left his father’s house and subsequently gone to Augusta, Ga., where he has ever since resided. The answer was withdrawn on the 11th of December, 1876, and on the 7 th of May, 1877, judgment was-entered on an assessment, of damages by a sheriff’s jury, as on a default. It is this judgment which the defendant now seeks to set aside.

The defendant claims that Mr. Averill had no power or authority to withdraw the answer and to allow judgment to go as by default.

As a general rule, were an attorney appears for a client in an action, he thereby undertakes the conduct of it to its termination, Harris v. Osbourn, 2 Comp. & M., 629; Rothery v. Munnings, 1 Barn. & Adol., 17, and he is not at liberty to abandon it without reasonable cause and reasonable notice. Nicholls v. Wilson, 11 Mees. & Wels., 106; 12 L. J., N. S., 266. But the attorney máy give such notice for any reasonable cause, as the want of .funds, etc. Mordecai v. Solomon, Sayers, 173; Menzies v. Rodrigues, 1 Price, 92. In this case Mr. Averill undoubtedly had a right, under the circumstances, to withdraw from the action, but whether he had'a right, to withdraw the answer is another question. In respect to this the general rule is that an attorney has plenary power in conducting a suit, and can bind his client, in spite of contrary.instructions from him. His power in this respect, however, I think is limited to-those acts which conduce, or tend to conduce, to the success of his. client The withdrawal of the answer, in effect, amounted to a confession of judgment, or at least to a confession that there was no defense to the action, and left it to a sheriff’s jury to assess the. damages.

In Denton v. Noyes, 6 Johns., 296, an attorney appeared and confessed judgment against the defendant without authority. The ■court (Chief Justice Kent presiding) opened the default, but allowed the judgment to stand as security. One judge dissented, on the ground that the' judgment should be set aside in toto. This case decides, first, that an attorney has no power to confess judgment without authority, although the judgment so confessed is not irregular; and, second, that such á judgment will be opened upon a proper application, without any regard to the client’s remedy against his attorney. This doctrine has recently been affirmed by the court of appeals, although it intimates that the judgment in the case of Denton v. Noyes should have been vacated. Vilas v. Plattsburgh & M. R. R. Co., 123 N. Y., 440, 457; 34 St. Rep., 67.

In Campbell v. Bristol, 19 Wend., 101, it was decided that if the attorney was insolvent, the judgment would be absolutely vacated. In this case Mr. Averill has been dead for years and his estate settled, and the remedy of the defendant, if any, would be very ■difficult of realization.

It also appears from the affidavits submitted in this case that, although the cause of action arose more than fifteen years ago, the plaintiff in this case has not been deprived of any witness he might have had at the time the default was taken, inasmuch as he himself testifies that there was no one present at the time, of the assault except friends of the defendant; consequently he would have been his only witness, and he is still alive and able to appear in court.

The affidavits presented on behalf of the defendant convince me that, since his residence in Augusta, Ga., the defendant has maintained a good character for truth and veracity, and I am, therefore, compelled to believe him when he says that he has had no notice whatever of the entry of judgment in this action. At the same time it seems to me that he has neglected this case, and omitted to do what a prudent man, knowing the circumstances, would have done, in making no inquiry as to whether a judgment had been obtained against him, and I am therefore inclined to follow the course pursued in Denton v. Noyes, supra, by allowing the defendant to come in and defend this action upon the payment of plaintiff’s taxablé costs and allowing the judgment to ■stand as security.

Motion granted, with ten dollars costs to the plaintiff.


author: Truax, J.

text:
    Gabriel Schwab et al., Pl’ffs, v. Thomas F. Kaughran et al., Def’ts.

      (Supreme Court, Special Term, New York County,

      Filed December, 1891.)

    Assignment for creditors.—Payment of individual Debt out of firm assets.
    A payment by one copartner of an individual debt out of the assels of the firm, shortly prior to and in contemplation of the making of a general assignment by the firm is, as matter of law, a voluntary transfer to hinder, delay and defraud firm creditors, and it is no defense, in an action to set the assignment aside on this ground, that the copartner making such payment believed he had the right to do so, or that the creditor receiving it subsequently returned the amount thereof to the assignee on demand.

      Action to set aside an assignment for the benefit of creditors.

      John J. Adams, for pl’fJs; tí, W. Pettit, for def’ts.
   Truax, J.

The plaintiffs seek to set aside a general assignment made by Thomas F. Kaughran and Edward Gr. Barrett, composing the firm of Kaughran & Co., on the ground that it was made with intent to hinder, delay and defraud the creditors of the said firm of Kaughran & Co.

The plaintiffs seek to set aside said assignment on various •grounds. One of those grounds is sufficient, under well established principles of law, to warrant the relief' asked for, and therefore it is not necessary to consider any circumstance except the one above referred to.

Shortly before making the said assignment one of the said firm gave to his wife from the assets of the firm the sum of $3,750 in payment of a debt that he, and not the .firm, owed his said wife. This the law regards as a voluntary transfer made to hinder, delay and defraud the creditors of the firm, and as to them is void. Bulger v. Rosa, 119 N. Y., 465; 29 St. Rep., 678, and cases there cited; Durant v. Pierson, 124 N. Y., 449; 36 St. Rep., 463, and cases there cited; Coleman v. Burr, 93 N. Y., 17; Chambers v. Smith, 60 Hun, 248; 38 St. Rep., 213.

But it is claimed on the part of the defendants that at the time the said payment was made the defendant who made the payment believed that he had a right to make it and that, therefore, there was no fraudulent intent. In this respect the case is like Coleman v. Burr, supra, in which case the referee before whom the action was tried found “the whole 'transaction to be fair and honest;” but, said Judge Earl, the referee “ here, however, found facts from which the inference of fraud is inevitable, and although he has characterized the transactions as honest and fair, that does not make them innocent nor change their essential character in the eye of the law. Mr. Burr must be deemed to have intended the natural and inevitable consequences of his acts, and that was to hinder, delay and defraud his creditors;” and in Chambers v. Smith the court said that the purpose for which the assignor gave a portion of his property to his wife “ was creditable to his nature,, unless in doing so he violated the legal right of his creditors, in which case the law requires him to be just rather than generous.”'

It is also claimed on the part of the defendants that no harm was. done by this payment to the wife because she afterwards, repaid the amount to the assignee. That fact is immaterial. The intent that controls is the intent of the assignor at the time of making the assignment, and this intent is not overruled by showing that after the assignment, and on the demand of the assignee, the money that had been in law fraudulently transferred was returned to the assignee. If the contention of the defendants were right, the validity of the assignment would depend, not on the intent of the assignor at or immediately prior to making the assignment, but upon the acts of the assignee subsequent to the assignment. Starin v. Kelly, 88 N. Y., 418; Loos v. Wilkinson, 110 id., 210; 18 St. Rep., 110.

It was said in the ease last above cited : It may be that an honest assignee may undo all the fraudulent acts of the assignor preceding and attending the assignment and the preparation of the schedules under it Yet, if the assignment was made by the assignor with the fraudulent intent condemned by the statute, the assignment may be set aside at the suit of judgment creditors, and all powers of the assignee, however honest he may be, taken away. In assailing a voluntary assignment for the benefit of creditors, it is important only to establish the fraudulent intent of the assignor.”

I have found as matter of fact that Mr. Kaughran paid the $3,-750 to his wife “ through, an honest mistake, and in the belief that he had a right to pay and apply the same in discharge of his indebtedness which was justly due and owing to his said wife,” but in view of the above decision, this mistake and belief do not change the legal significance of his act.

I do not pass upon the validity of the two confessions of judgment and the transactions subsequent thereto and connected therewith, because I think the questions of fact arising therefrom can better be determined by a jury in an action to which the judgment creditors are parties. But before plaintiffs can have such determination it is necessary that the assignment should be set aside. Smith v. Payne, 56 Super. Ct., 451; 21 St. Rep., 462.

Judgment is ordered for plaintiffs, setting aside the assignment as far as it relates to the individual property of the defendant Kaughran and the property of the firm of Kaughran & Co., with costs. Let a copy of the findings be prepared for signature.


author: Daniels, J.

text:
    In the Matter of the Application of Thomas Commerford Martin, Resp’t, for a Peremptory Writ of Mandamus to The W. J. Johnston Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Business corporations—Right of stockholder to inspection of books.
    An affidavit stating that affiant was advised by counsel and charged the fact to be that an applicant for inspection of the books of a business corporation was not the owner or holder of shares of stock therein, admitting that he held a certificate for shares, but averring that he was not entitled to possession thereof, is not such a denial of positive averments of ownership contained in the applicant’s affidavit as to defeat an application for a mandamus to compel the company to permit an inspection.
    2. Same.
    The fact that the by-laws of the company direct that the books shall be in the charge of the secretary is no defense to such application where the refusal of the treasurer to permit inspection was unqualified, and not put on the ground of inability.
    3. Same.
    The right of the stockholder to inspect the books of account includes the right to take extracts therefrom.
    Appeal from an order directing the issuing of a writ of mandamus requiring the company to permit the applicant to inspect and take extracts from the records and books of account of the company, and the book containing the names of the persons who have been and are stockholders of the company.

      Robert (7. Ingersoll and Mason F. Prosser, for app’lt; Arthur Í7. Masten, for resp’t.
   Daniels, J.

When this appeal was before a preceding general term of this court, it was directed to be dismissed because the company had complied with the requirements contained in the writ. But on a further appeal to the court of appeals that dismissal was reversed, and a hearing of the merits of the proceeding was directed to take place, for the reason that fifty dollars-costs had been recovered against the company. And pursuant-to that direction the case has again been brought to a hearing-upon the appeal.

In support of the application the applicant Martin has sworn that he became and was the owner of over fifteen shares of the capital stock of the company, and that on the 12th of September, 1890, he had made a demand to be allowed to examine the stock subscription book and the records and books of account, of the company. -This demand is stated to have been made upon the treasurer during the usual business hours, and not upon a Sunday or a legal holiday, and that the treasurer refused to comply with thq, demand or to permit the applicant to examine the books of records or any or either of them. And further statements are contained in the affidavit which it is not strictly important for the disposition of the appeal to examine. In opposition to the application an affidavit was made by John H. Johnston, who was a director of the company, in which he stated that he: was advised by his counsel, and charged the fact to be, that the applicant was not the owner or holder of these shares of the capital stock of the company or of any such shares, admitting, however, that he held a certificate for over fifteen shares of the stock, but averring that Martin was not entitled tó the possession of that, certificate. He also admitted that the demand mentioned in the-applicant’s affidavit had been made upon the treasurer who refused to comply with it, or permit the applicant to examine the books.. And this has been relied upon as so far controverting the statement of the applicant that he was the owner of these shares as to-put it in issue in such a manner as to require a trial of such issue to ascertain the truth of the facts in this manner referred to. Reliance has also been- placed in the affidavit upon the by-law directing that the certificate book, transfer book and such other books- and papers as the board should direct, should be in charge of the secretary, and that no application had been made to him for the examination of these books. But in the refusal which the treasurer-made there was no allusion to his inability, if that existed, to comply with the demand, and no reference made to the fact that any other person was the proper officer to receive and act upon the demand. Neither does it appear in any form that the books did not remain- under the control of the treasurer. The proceeding, therefore, so far as it has in this manner been shown,. seems to have been regular. Especially as the books were under the control of the directors of the company, and the treasurer was necessarily one of those directors.

In the affidavit of Mr. Johnston there was no denial of the statement made by Martin that he was the owner of these shares of the capital stock of the company. The most that was said was that the counsel of Mr. Johnston had advised him that the applicant was not the owner of these shares, which was no evidence whatever in the way of controverting the applicant’s positive affidavit that he was such owner. Neither was it stated as a matter of fact that the certificate for the shares, which was admitted to be in the possession of Mr. Martin, was not his property. The statements made were peculiar in the language which was used, indicating the disposition to be to avoid anything like a positive denial of the statements of the applicant, but at the same time endeavoring to evade the grounds of the application. And these statements, therefore, in no manner controverted or put in issue the essential facts relied upon to support the application. The case is entirely different from those which have been referred to in which the denial was held to be operative, for in them it was direct and positive and controverted the material facts upon which the application had been made to rest. This was the nature of the affidavit used to oppose the motion in People, etc., v. Board of Police, 46 Hun, 296; 11 St. Rep., 403, and People v. Cromwell, 102 N. Y., 477; 2 St. Rep., 427. Mr. Johnston’s affidavit was more in the nature of the statements held to be inoperative by way of the creation of an issue in People v. Common Council of Brooklyn, 77 N.Y., 503; People v. Supervisors, etc., 25 St. Rep., 737; Sullivan v. Gilroy, 55 Hun, 285; 28 St. Rep., 566, and Kelsey v. Pfaudler, etc., Co., 20 St. Rep., 533. There was therefore no such denial of the facts that the applicant was the owner of these shares and had become entitled to an inspection and examination of the books of the company which had been denied him, as is sufficient to defeat this application.

By § 17 of chap. 611 of the Laws of 1875 it has been made the duty of the directors of the company to cause a book to be kept by the treasurer or clerk thereof, containing the names of all persons alphabetically arranged who are, or shall within six years have been, stockholders of such corporation. And this book during the usual business hours of the day, on every day except Sunday and legal holidays, it has been directed shall be open for the inspection of stockholders and creditors of the corporation and their personal representatives, at the principal business office of the corporation, and any and every such stockholder, creditor or representative shall have the right to make extracts from such book.

So far certainly the applicant established his right to the writ which the order directed tobe issued. But it has been contended on behalf of the company that this order was broader than the applicant was entitled to have it, for the reason that the oreceding section of the same act, requiring the corporation to keep at its principal office or place of business correct books of account of all its business and transactions, and declaring that every stockholder in the corporation should have the right at all reasonable times by himself, or his attorney, to examine the records and books of account of the company, has not permitted in express, language that the person making the examination may take extracts from the books, as that has been directed by this writ. But what the section has provided for is an unrestricted examination of the books by the stockholder, or his attorney, and that would seem to necessarily include the right to obtain extracts from the books. For an extended examination, as that may very well be, which the stockholder under this authority is entitled to maker would be fruitless without the right to make memoranda or extracts that might afterwards be useful to the person in whose behalf the examination should be made. And that this construction should be placed upon the statute, although it has not in. language, as the next section has, provided that the person making the examination shall have the right to make extracts from the book, appears to necessarily follow from the general right to-examine the books secured by the sixteenth section of the act. And that the statute containing provisions for this general authority should be so construed, appears to be sustained by CothealY. Brouwer, 1 Seld., 562. As the case has now been brought before the court, the right of the applicant to make this inspection and examination and to take extracts or memoranda from the books has been sufficiently sustained to maintain the order directing the-issuing of this writ, and it should therefore, be affirmed, with ten dollars costs and the disbursements.

Yak Brunt, P. J., and Ingraham, J., concur.


author: Barrett, J.

text:
    Champion Bissell, App’lt, v. The Press Publishing Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Libel—Privileged communications—Proceedings before police MAGISTRATES.
    Pair and true reports of proceedings before police magistrates are within both the spirit and letter of § 1907 of the Code, and their publication is. thereby privileged.
    2. Same—Pleading.
    Matter tending to mitigate damages is a partial defense and may be-pleaded as such, and need not be specially pleaded in mitigation.
    Appeal by the plaintiff from an interlocutory judgment of the special term, overruling his demurrer to the second and third partial defenses set forth in the amended answer.

      I). D. McKoon, for, app’lt; Lowrey, Stone & Auerbach, for resp’t.
   Barrett, J.

The action is for libel. The complaint sets forth several causes of action. The answer commences with a general denial It then alleges that, so far as the publications set forth in the seventh and eighth causes of action purport to be accounts-of proceedings before a police justice, the same were fair, true and correct accounts of such proceedings, and were published without malice and in the belief that they were true. Upon this, it is further alleged that such publications were privileged and are not actionable. These defenses are not specifically pleaded in mitigation of damages. They are characterized as separate and partial defenses.

The demurrer is upon the ground that these partial defenses are insufficient in law upon the face thereof, and two points are made against them: First, that the proceedings before the police magistrate were not privileged; and, second, that they should have been specially pleaded in mitigation of damages and not in justification. The authorities cited by the appellant upon the-first point were either at common law or prior to the act of 1854. The case which he mainly relies upon, Stanley v. Webb, 4 Sandf., 21, was decided prior to the passage of this act, and it is no longer an authority. Indeed it was subsequently held by the same court (in 1874) that proceedings before a police magistrate were “judicial proceedings” within the meaning of the act. Ackerman v. Jones, 37 Supr. Ct., 55, and cases there cited, and that there was no distinction between such proceedings and the regular proceedings in a court of law. We have no doubt-of the correctness of this decision. Fair and true reports of proceedings before police magistrates are within both the spirit and the letter of § 1907 of the Code of Civil Procedure, and their publication is thereby privileged. The second point is also untenable. Whatever the rule may have been prior to the Code of Civil Procedure, matter tending to mitigate damages in an action for a personal injury is now partial defense. Code Civ. Pro., § 508. It may, therefore, be set up as such. In the present case, if the matter set forth as a partial defense is established upon the trial, it will eliminate so much of the libel set forth in the complaint as is covered by the privilege. Thus the libel will be shorn of some of its elements and the damages will be proportionately reduced. The appellant, in his elaborate argument and citation of authorities on this point, overlooks this new provision of the Code, which seems to have been enacted for the very purpose of changing the old rule as laid down in Van Benschoten v. Yaple, 13 How. Pr., 100; Newman v. Otto, 4 Sandf., 668, and other cases. If matter tending only to mitigate or reduce damages is, under this section, a partial defense, then surely it may be pleaded as such. Now the matter here pleaded and admitted by the demurrer is, strictly speaking, a partial defense to the cause of action set forth; for it establishes a perfect defense to part of the libel. It also, and indeed as a sequence, tends to mitigate the damages recoverable for this entire publication. In either aspect it was, under this § 508, properly pleaded as a partial defense.

The judgment appealed from should, therefore, be affirmed, with costs, with leave to withdraw the demurrer on payment of costs of appeal and costs of demurrer at special term.

Van Brunt, P. J., and Andrews, J., concur.