author: SPRING, J.

text:
    Esther McWilliams, plaintiff, v. Edgar B. Jewett, as Mayor, etc. et al., Defendants.

      (Supreme Court, Erie County,

      Filed November, 1895.)

    1 Street railroads—Construction—Certificate—Necessity
    The interdiction, contained in section 59, chapter 676 of 1892, applies only to the additional power conferred upon railroad corporations, and not to the powers given by the general and stock corporation laws.
    2. Same. z
    The purpose of requiring the certificate of the state commissioners before a road can be constructed was to prevent the building of unnecessary roads and to vest in some tribunal the authority to determine as to the wisdom df constructing a railroad in any given place.
    8. Same.
    There is no requirmentthat the consents of property owners, bounded on the street on which it is proposed to build the road and of the local authorities of the state, are conditions precedent to the granting of the certificate, and none preventing the corporation'from attempting to get them before it has obtained such certificate.
    Action to enjoin defendants from advertising notice of a public meeting on the question of allowing the streets of Buffalo to be used by a railroad company. A temporary injunction was granted, and the plaintiff moves to make the same permanent.

      John G. Milburn, for pl'ff;
    Frank C. Laughlin and Spencer Clinton, for def'ts.
   SPRING, J.

The plaintiff is the owner of a house and lot on Linwood avenue, one of the principal residential streets of the city of Buffalo. The Buffalo Traction Company is a railroad corporation, recently organized, with a view of constructing a street-surface railroad in that city, and its projected line indicates the use of this avenue in front of the premises of the plaintiff in the construction and operation of its road. This company, in pursuance of sections 91 and 92 of the railroad law (Laws 1892, chap. 676), has applied to the local authorities for their consent to use the streets of the city in the building and maintenance of its line; and the defendants, in their official capacity, were about to commence the publication of the required notice for the public hearing before the common council of the city, which was fixed for November 30th, when the temporary injunction was granted in this action restrainig its promulgation. It appearing that, unless, publication was commenced promptly,- the fourteen days prescribed by statute for the publishing of the notice would „ not. intervene the hearing of the motion to malee the injunction order permanent and the designated date for the public meeting, the order was accordingly modified permitting the publication to be made, and the date for the hearing of the motion was changed to a week earlier. By this course, if the injunction was vacated, the public meeting could be had at the date fixed, and, if sustained, the publication could be discontinued, and thus no injury accrue to any one.

The certificate of the board of railroad commissioners, “that public convenience and a necessity require the construction of said railroad as proposed in said articles of association” (section 59 of the railroad law) has not yet been obtained. The contention of the counsel for plaintiff is that the action of the defendants in advertising for a public meeting is premature; that this certificate of the commissioners must antedate any attempt to obtain the consent of the local authorities to the building of its road. The section mentioned provides that “no railroad corporation hereafter formed under the laws of this state shall exercise the powers conferred by law upon such corporations, or begin the construction of its road,” until the certificate of the board of railroad commissioners as to the public convenience and a necessity for its building has been obtained. Is the action of the defendants in their endeavor to ascertain the trend of public sentiment as to the wisdom and feasibility of constructing this road in the city within the inhibition of section 59? Section 2 of article 1 of this chapter prescribes the requirements for the formation of a railroad corporation. These requirements have been complied with, and the traction company is a railroad corporation equipped with a board of directors, and permitted to exercise the functipns of its corporate powers, except as they are within the restrictions of the section quoted. Even if the board of railroad commissioners refuse to grant the requisite certificate, .the corporation does not thereby become functus officio. It has the privilege, after the expiration of one year, to renew its application for the certificate, and during the ínterin! it continues to be a corporation. It can sue and' be sued. If any other corporation should usurp its name, it could invoke the aid of the courts to restrain this invasion of its franchise. It is liable to assessment, and amenable to the state as other corporations are. It can elect directors, and carry on the functions incidental to its corporate life. In fact, every other power, except such as are prohibited by section 59 aforesaid, can be exercised by a railroad corporation, irrespective of the approval of the state board. That section unequivocally restrains the corporation from the construction of its contemplated road unless the fiat of the board of railroad commissioners has been given as the warrant for so doing. It also prescribes that the corporation shall not exercise the powers conferred by law upon such railroad corporation until the certificate has been obtained. What is the significance of that restriction? Clearly not the powers incident to all corporations, for the inhibition only pertains to those conferred by law upon railroad corporations. What are these? The chapter itself clearly defines these additional powers applicable Only to railroad corporations. Section 4 of article 2 provides as follows: “Additional Powers Conferred.—Subject to the limitations and requirements of this chapter, every railroad corporation, in addition to the powers given by the general stock corporation laws, shall have powers.” Then in the succeeding subdivisions of. this section are specifically set forth these additional powers, and they are to enter upon lands for .the purposes of survey, the acquisition of land, the construction of the road, the intersection of streams, other railroads, etc., the building of stations, the transportation of persons and property, and the time and manner of so doing, and the purchase of lands, etc., in other states, and to borrow money for the completion of its road. These additional powers all pertain to the actual construction of the road, and signify the performance of physical acts from which injuries may flow directly to the property owners and persons interested. These are the powers “conferred by law” upon railroad corporations which, in common with the construction of the road, are prohibited until the certificate has been granted by the state board. Section 59 expressly exempts from this prohibition the making of examinations and surveys essential to the selection of the most advantageous route. This is a significant circumstance, indicating that the legislative intent in restricting the execution of corporate powers was only to apply to the additional privileges specifically enumerated in the very chapter in which the interdiction is contained. The purpose of requiring the certificate of the state commissioners before the road can be constructed was to prevent the building of unnecessary railroads, and to vest in some tribunal the authority to determine as to the wisdom of constructing a railroad in any given case. The incipient stages preceding the actual construction of the road were not designed to be prohibited. They involved no invasion of property rights. Had the legislature intended to restrain these preliminary acts, it would have made the formation of every railroad corporation dependent upon the approval of the board of railroad commissioners. A completed corporation, with a map of the proposed route, is presented to this board, and that body then determines as to the necessity and public convenience of the contemplated road; but the act does not require the corporation to be absolutely quiescent during the pendency of the proceedings for the certificate, but only as to the acts in section 4, which the legislature evidently intended to await the action of the state board.

Section 59, referred to, originally exempted from its operation street-surface railroads, but by an amendment at the last session of this legislature this exemption was stricken from the section, so that such railroads are within its purview. Article 4 of the railroad law is devoted to street-surface railroads, and there oare certain initial proceedings required peculiar to roads of that kind. The consent of property owners bounded on the street on which it is proposed to build the road, and of the local authorities of the city, must be obtained before the construction of the road. There is no requirement that these consents are conditions precedent to the granting of the certificate, and none preventing the corporation from attempting to get them before it has obtained such certificate. The pith and scope of the requirement are that the consents must precede the construction of the road.

The board of railroad commissioners is a tribunal vested with discretionary power in its determination of the necessity and public convenience of a railroad. In re Amsterdam, J. & G. R. Co., 86 Hun, 578; 67 St. Rep. 878. It functions are like those of a court, without the strict rules of evidence governing the latter. In ascertaining as to the wisdom and propriety of granting a certificate to a street-surface railroad corporation the controlling purpose must be to meet the demands of the locality in which the proposed line is to be built. Public sentiment in the city would be a monitor heeded largely by this tribunal. So it may well be urged that the meeting sought to be convened by the municipal authorities to give a public hearing to those interested for or against the contemplated line would furnish valuable information for the guidance both of the common Council and of the board of railroad commissioners. If public sentiment is positive and definite in either direction, if the common council grant the consent with substantial unanimity, if the consent is contrary to the will of the people of the city as evinced in the meeting;, these considerations .would have weight with the hoard in passing upon the propriety of certifying to the necessity and public convenience of the road. None of these acts are of that physical concrete kind from which damages can result to the property owners, the value of whose property may be affected by the construction of the road. Endeavors to ascertain and execute public sentiment are imbedded in the fiber of a republican form of government. The fullest measure of efficient public executive service is found in meeting inflexibly the will of the people, and the nearer the state or municipal authorities can get to that genuine public sentiment the more efficacious will be their administration of affairs. Any act which has for its object the enlightenment of a public body on the proposition it has under advertisement should be encouraged, not restrained. In amending section 59 to make it embrace street-surface railroad corporations, the legislature left the restriction upon the exercise of corporate powers unchanged. If I am correct in holding that this interdiction applies only to the additional powers conferred upon railroad (corporations, then certainly it cannot be construed to forbid the publication of this notice. Had the legislature designed to extend still further this restríe-, tion, it would have sp acted in extending the act to street railroads. It would not leave the scope of the act so that the restriction plainly applied only to the additional powers enumerated, and yet, without change of phraseology, make it applicable to provisions peculiar to street railroads, and which are preliminary in their import. I have very grave doubts as to the right of plaintiff to an injunction in this case, even assuming I am wrong in the construction of the statute. The drastic restraint of an injunction is permissible where damage is likely to ensue from the performance of the acts complained of, and where no adequate redress at law is obtainable. But, where irreparable injury is alleged, the damage must not be uncertain and speculative, but real and substantial. Troy & B. R. Co. v. Boston, H. T. & W. Ry. Co., 86 N. Y. 107,122; Thomas v. Musical M. P. Union, 121 id. 45-57; 30 St. Rep. 563.

To say publication of a notice of a public meeting will irreparably injure the property of theplaintiff is hardly within the province of the damages which the courts are expected to make the basis of their interference by injunction. The traction company is not a party to this action. The mayor and clerk are the officers restrained, and their offense consists in attempting to invite the plaintiff with others to enlighten them as to the advisability of consenting to the appropriation of parts of certain streets in constructing this road, and I question whether that act is of sufficient gravity in its bearing upon property rights to justify an injunction. However, I prefer to base my denial of plaintiff’s application upon the broader ground that the certificate is not a necessary preliminary ,to the application for the public meeting, and the ■ publication of the notice in pursuance thereof. The motion is denied, with $10 costs.

Motion denied, with $10 costs.


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    Christina L. Allen et al., as Administrators, App’lts, v. New York Central and Hudson River Railroad, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Negligence—Railroads—Crossings.
    It is negligence on the part of a person to drive Ms horse to within from two to four rods of a crossing without looking to see if a train is approaching, where there is nothing to obstruct the view of the approaching train from the deceased for a distance of fifty or sixty rods from the crossing.
    2. Same—Proof.
    Under the evidence in this case, it was held that the plaintiff failed to show that the deceased was free from negligence contributing to Ms death.
    .Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    Whedon & Ryan, for pl’ffs;
    Charles A. Pooley, for def’t.
   LEWIS, J.

This action is to recover damages for the killing of the plaintiffs’ intestate at a highway crossing of the defendant’s road near Medina, Orleans county. The deceased was a farmer, seventy-two years of age, and had resided in the neighborhood of this crossing for twenty-one years; was familiar with the crossing, and the running of the defendant’s trains. On the 30th day of October, 1892, he was returning home from the village of Medina, in the daytime, and drove along a highway running at right angles with the defendant’s railroad track, about one mile west of the village of Medina. He was in a top buggy, drawn by one horse. He approached the crossing from the north, upon a slow trot, and as he arrived near to the railroad track his horse became frightened and unmanageable, caused by the sharp whistle of the defendant, which was approaching the crossing from the east, with a train of passenger cars. The' horse probably saw the approaching train, which added to his fright. The horse, despite the efforts of the deceased to stop him, ran across the railroad track. The buggy was struck as it was crossing the track, by the engine, and the plaintiffs’ intestate was instantly killed.

There was evidence tending tó show negligence on the part of the defendant in that no signal was given of the approaching train until it arrived within a few rods of the crossing, when the whistle of the engine was sharply and loudly blown. The railroad crosses the highway at grade, and the surface of the land in the vicinity of the crossing is level. There was nothing to obstruct the view of the approaching train by the deceased as he rode along the highway from the north for a distance of fifty or sixty rods from the crossing. The undisputed evidence was that, had the deceased at any time while driving that distance looked towards the approaching train, he could have seen it for a distance of at least-half a mile east of the highway crossing. There was an absence of any evidence tending to show that the deceased looked during that time to see if the train was approaching. There was affirmative evidence that for a portion of that distance he did not make any observation to discover if the train was coming. There were-side curtains upon the buggy. They were down, and the top was-up. The deceased was sitting upon the seat of the buggy, and in. order to look to the east he would have been obliged to incline his body considerably forward. This he does not seem to have-done, but drove along towards the track without apparently paying any heed or attention to the approaching train. There was evidence tending to show that the rambling of the train as, it. moved over the track could he - heard as it left the village of Medina, and all along to the crossing, by a person upon the highway. It was a clear, pleasant day. The evidence shows that there were four of five small trees on the easterly side of the highway, but they did not, at that season of the year, obstruct materially the view to the east from the highway. It was unquestionable negligence on the part of the deceased to drive his horse, as; the evidence shows he did, to within from two to four rods of the crossing without looking to see if a train were approaching from the east. It was a passenger train, which left Medina daily at about the time it did the day in question, so that we must assume that the deceased knew that a train might he expected to arrive at the crossing at about that time. The trial court, upon these facts, held that the plaintiff had failed to show that the deceased was free from negligence contributing to his death, and hence directed a nonsuit. We think the direction was clearly right.

The plaintiffs’ motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.


author: BARTLETT, J.

text:
    Thomas Tinsley, Resp’t, v. Elbert S. Jemison, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      January 14, 1895.)

    Estoppel—Contract.
    A party does not affirm a contract because, while denying any liablib" fcy thereunder, he also insists that, if a court shall nevertheless determine that he is liable, the measure of his liability is limited, especially where the reduction in damages is wholly due to the action of the court, without any request or suggestion on his part or that of his counsel. Such judgment cannot he deemed beneficial or favorable to him in any sense as to constitute an estoppel, waiver or bar with reference to the prosecution of an appeal in the state court from a judgment in an action by him to set aside the contract, simply because the amount of the recovery against him was kept down by the court beyond the expectation or wish of those who sued him.

      Action to set aside a certain contract relating to securities or obligations of the city of Houston, Tex., in which plaintiff appealed from a judgment in favor of defendant. Defendant moves to dismiss the appeal.
    John L. Hill, for motion;
    Frederick A. Ward, opposed.
   BARTLETT, J.

This motion is not based upon any occurrence in the present action, but arises out of the proceedings which have been had in the circuit court of the United States in a suit subsequently brought to trial between the same parties. In the present action the plaintiff sought to set aside a certain contract relating to securities or obligations of the city of Houston, in Texas. He was unsuccessful at special term, and has taken the-appeal which we are now asked to dismiss. In the suit in the federal court, the defendant herein, together with others, sought to recover damages against Tinsley for a breach of the same contract, and obtained a verdict against him. That recovery, however, was smaller than it otherwise would have been because the court, in fixing the measure off damages, was more favorable to Tinsley than Jemison, and his associate plaintiffs in that case seem to have desired, and directed the jury to deduct from their award the value of certain securities which Tinsley had delivered under the contract. The contention in Jemison’s behalf now is that, by reason of this reduction of damages against him in the suit ón the contract in the federal court, Tinsley has affirmed the contract, and is precluded from prosecuting the present appeal.

We do not see how this position can be sustained. A man does (not affirm a contract because, while denying any liability thereunder, he also insists that, if a court shall nevertheless determine that he is liable, the measure of his liability is limited. The judgment in the federal court, however small, was recovered in spite of Tinsley’s opposition, and against his will. Indeed, it appears that the reduction in damages was wholly due to the action of the United States circuit judge, without any request or suggestion on the part of Tinsley or his counsel. The judgment, therefore, cannot be deemed beneficial or favorable to him in any such sense-as to constitute an estoppel, a waiver or a bar, with reference to-the prosecution of the present appeal, simply because the amount of the recovery against him was kept down by the court beyond the expectation or wish of those who sued him. His attitude in the federal court, no less than his attitude in the state court, has been hostile to the contract which gave rise to both litigations. He has failed thus far to annul that contract or successfully resist its enforcement, but there is nothing before us to show that he has done anything to estop him from continuing his efforts in either direction by wav of appeal. The case of Ripley v. Insurance Co., 30 N. Y. 136, 164, cited in the brief of the respondent, does not - seem to have any application to the question involved.

The motion to dismiss the appeal must be denied, with costs.

All concur.


author: MERWIN, J.

text:
    George W. Hey, Resp’t, v. Matthew J. Dolphin et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Contracts—Validity—Public policy.
    An agreement that stock, issued to joint owners of an invention in consideration for its transfer to the corporation, shall he held jointly and be inalienable for ten years without their joint consent, is not void as against public policy.
    3. Same—Power op attorney.
    Where a power of attorney is coupled with an interest, or where it is given for a valuable consideration, it is from its own nature and character m contemplation of law irrevocable, unless there is an express stipulation to the contrary.
    ¡S. Same.
    A power of attorney irrevocable for ten years, executed by joint owners of corporate stock to one of their number to vote on such stock, is not void as against 'public policy.

      r4. Same—Not contrary to statute.
    Section 31, chapter 687 of 1893 is not applicable to a power of attorney which is not of the ordinary character, where none of the joint owners could have voted on the stock without the consent of the other owners.
    Appeal from a judmment in favor of plaintiff.
    Samuel Utermeyer, Louis Marshall, De Witt C. Brown and William S. Andrews, for app’lts;
    John W. Suggett and Celyon H. Lewis, for resp’t.
   MERWIN, J.

The defendant the International Postal Supply Company of New York was duly incorporated under the laws •of this state on the 10th July, 1885. It was formed for the purpose of manufacturing and dealing in machines and other supplies for use and employment in the post offices in this and other countries, including machines and devices for stamp-canceling and postmarking mail matter, and also for the purpose of acquiring and dealing in letters patent for such machines." Its capital ■stock was $2,000,000, divided into shares of $100 each. The number of its trustees was seven, and they were duly elected. The plaintiff and the defendant Dolphin have been trustees since the organization, Dolphin being the president of the board. The place of business of the corporation is Brooklyn. Prior to the ■organization of the corporation, Hey and Dolphin, with three others, were owners, or interested in the development, of inventions for machines for stamp-canceling and postmarking letters, and had obtained or applied for two patents covering such inventions. These patents or applications were, on the organization of the corporation, transferred to it, and 10,000 shares of stock were issued thereupon to the five parties. Of this stock the parties contributed 2,000 shares, which were placed on the market for the benefit of the corporation, and sold to provide funds for developing the inventions. On the 14th October, 1887, Hey and Dolphin entered into a written agreement, in and by which, after reciting that the parties had been engaged in the business of inventing and developing machines for stamping and canceling mail matter, and were the joint owners of pending applications for patents and other joint interests connected with the business, and that it was deemed for the best interest of both parties, for the purpose of preventing friction and disputes, to consolidate their interest in the business into a joint interest as far as it could be effectually done consistent with the rights and interests of the parties in and to the International Postal Supply Company, it was therefore agreed that the parties should own jointly all inventions and improvements in the post-office machines of every name and nature theretofore or thereafter made or purchased by either party. A schedule of twelve applications was attached, supposed to include all then made. It was also agreed that the parties “shall contribute in equal shares to the expense of the said business and of developing and patenting the said inventions, and shall share equally the profits thereof;” that all sales of stock of the postal company made by either shall be for the joint benefit of both, and that neither of the parties shall have the right to dispose of any invention, application, or patent, or of any interest therein, without the consent of the other. On the 27th February, 1888, the three contracts in question were made between the plaintiff and the defendant Dolphin as parties of the first part, and the corporation defendant as the party of the second part, by which, taken as a whole, the plaintiff and Dolphin sold and transferred to the company the twelve applications and inventions contained in the schedule annexed to' the contract between Hey and Dolphin, and agreed to assign all inventions or improvements which they, or either of them, may make in post-office machines of any descriptora. One of the contracts specifically covered one of the named applications, and the price to be paid by the company was $400,-000 in the capital stock of the company at par value; and it was provided that the stock should be issued in a single certificate of 4,000 shares “to Matthew J. Dolphin and George W. Hey, jointly, and the beneficiary interest in the said four thousand shares of stock is hereby apportioned, ascertained and declared to be as follows: The said Matthew J. Dolphin shall own an undivided one-half interest in the said stock, and the said George W. Hey shall own the other undivided one-half interest therein. The said certificate of four thousand shares shall not be surrendered, and another or other issued in its stead, for the purpose of dividing the said stock among the said joint owners thereof, or among them and other or others, for the period of ten years from the date of this instrument, without the joint consent of the said Dolphin and Hey, which said point consent shall he reduced to writing, and filed with the said company. The said four thousand shares of stock chalí not he sold, pledged or otherwise disposed of, in whole or in part, during the said period of ten years, without the joint consent of the said Dolphin and Hey being so filed with the said company as aforesaid; but it is expressly agreed that the said party of the second part shall interpose no objection or hindrance, but, on the contrary thereto, shall consent, and does hereby consent, to- any disposition of the said stock, or any portion thereof, which shall be made by and with the joint consent of the said Dolphin and Hey. The said invention, and others for similar uses,, assigned by the said parties of the first part to the said party of the second part in other instruments of assignment bearing even date herewith, have cost the said parties of the first part great expenditures of time and money, and they have therefore made it a condition of this agreement and assignment, as well as of the others-above referred to, that without the joint consent the stock paid to the said parties of the first part shall not, during the time named to be sold in whole or in part, and shall not be divided among themselves or others, but shall remain as first issued for the purpose of enabling the said parties of the first part to prevent the control and management of the said company from passing over to persons who might be less qualified or less disposed to make the business of the said company a success and its stock valuable. All dividends paid, and all payments for any cause, or from any source, which may be made by the said company upon the said four thousand shares of stock, shall be divided among and paid and that it was deemed for the best interests of hoth parties, for the purpose of preventing friction and disputes, to consolidate their interest in the business into a joint interest as far as it could be effectually done consistent with the rights and interests of the parties in and to the International Supply Company, it was thereto the said Dolphimand Hey, share and share alike, according to-their respective interests in the said stock. * * "* The said parties of the first part do hereby jointly and severally constitute and appoint the said Matthew J. Dolphin to be their lawful attorney, substitute, and proxy for them and in their names and. stead to vote on the said four thousand shares of stock at all annual elections of trustees and inspectors of election for the said company, and at all meetings of the stockholders of the said company, as fully and with the same force and effect as either of them might or could do if the said stock stood in his individual name on the books of the said company, and he were personally present at such elections or such meetings. This power of attorney shall remain unrevoked and irrevocable for the said period of ten years from the date of this instrument, unless its revocation shall sooner be assented to jointly by the said Matthew J. Dolphin and George W. Hey. In the event of the death of the said Matthew J. Dolphin-within the said ten years, the said four thousand shares of stock shall be divided according to their recpective interests therein between the said George W. Hey and the heirs or legal representative of the said Matthew J. Dolphin; and the power of attorney herein executed shall be revoked unless all parties in interest shall jointly agree to a different disposition of the-said stock and its management.” Another of the contracts covered another application and invention at the same price, with similar provisions as to the form of the certificate, and its disposal, and the power of attorney. The third contract covered the other ten inventions or applicationsat the price of $200,000 in stock, with similar provisions as to the form of certificate, and its disposal and the power of attorney. The certificates were issued in the form designated, and thereby Hey and Dolphin became joint owners of one-half the stock of the corporation. It appears that at that time they to some extent each individually owned other shares of the stock, not affected by the agreements.

In the complaint it is alleged, among other things, that Dolphin has, since the said contracts were made, controlled the corporation and its business, and has mismanaged the same in divers named particulars, to the great injury of the plaintiff and the other stockholders; that the power of attorney is void under the laws of the state, and is contrary to public policy, and has been revoked by plaintiff. Relief is asked that it be declared void, and that the corporation issue to plaintiff a certificate of 5,000 shares.

It was found by the special term that Dolphin, by virtue of the power of attorney, and by exercising the voting powers thereby conferred, has been, and still is, enabled to control and manage the affairs of the company, but that the plaintiff had not proved any fraudulent mismanagement on the part of Dolphin. At the trial it was held that the evidence on this subject on the part of the plaintiff did not of itself call for a revocation of the agreement, or call for a reply on the part of the defendants, and the defendants gave" no evidence on the subject. It was, however, held as matter of law that the provisions in the contracts, making the power of attorney or proxies irrevocable for ten years unless their revocation was sooner assented to by Dolphin and Hey, were contrary to public policy, and that plaintiff had a right to revoke the same; that those parts of the contracts that provided that the certificates should remain as they were, and the stock not sold of divided during the period of ten years without the joint consent of Dolphin and Hey, were contrary to public policy and void; and that plaintiff was entitled to judgment accordingly, and for a partition and division by the corporation of the 10,000 shares equally between Hey and Dolphin.

Ho question is made about the validity of the issue by the defendant of the 10,000 shares of stock, or as to the right of Hey and Dolphin to buy them, or about the right or power of the corporation to make the contracts. The real contest is between Hey and Dolphin about the character of the ownership and about the management. The other stockholders are not here complaining, nor is the corporation. The plaintiff seeks the benefit of the contracts so far as they give him an ownership of an undivided one-half of the stock, but repudiates some of the conditions of the ownership that are connected with the acquisition and are a part of the same transaction. It is not entirely clear that the plaintiff can repudiate conditions which seem to be somewhat material, and still claim full ownership. But, passing that, we come to the question whether the agreement that the stock should be held for ten years, and the power of attorney be for that time irrevocable, was void as against public policy. The- object and purpose of the arrangement as stated in the contracts is not of itself vicious, but rather the contrary. This is not a case where, as in some of the cases cited by the respondent, there is a combination of stockholders for the special benefit of some party, or where the power to cast the vote is in a party having no beneficial interest. The arrangement purported to be for the benefit of all the stockholders, and the attorney was one of the parties beneficially interested. Nor is it a case of combination of stockholders, within the decision of Fisher v. Bush, 35 Hun, 641, upon which the respondent relies; for in that case it is said by Judge Barker (page 643):

“The owner of property may withdraw it from the market as long as he deems it for his interest to do so, and, if these parties and their associates were the promoters of this corporation, or owned these shares in common or as copartners, then doubtless they could have entered into a valid agreement, regulating a sale of the same, and requiring the owners to hold them from market for a reasonable and definite period of time, and thus forbidding a sale by either of his interest to one against whom his associates might have reasonable objection. Moffatt v. Farquhar, 7 Oh. ' Div. 591, reported in 23 Moak, Eng. R, 731. A stipulation of that character would not be illegal as against public policy,- as it would be simply a provision, assented .to by all, that the newcomer into the business transaction should be with the approval of the other joint'owners.”

It will hardly be claimed that a majority of• stockholders may not combine to control an election of directors. Havemeyer v. Havemeyer, 43 N. Y. Supr. Ct. 506; Barnes v. Brown, 80 N. Y. 537. In the latter case it is said:

“It is the general rule, sanctioned-by the policy of the law, that those who have the largest interest in corporations may control them, as they have the greatest interest that they shall be well managed.”

In Brown v. Steamship Co., 5 Blatchf. 525, Fed. Cas. No. 2,025, it was held.that an irrevocable power of attorney or proxy, given by an owner of stock in a corporation, to vote upon such stock, and to continue for the period of four years, reserving certain privileges to such owner in regard to the manner of dealing in the stock and withdrawing from such ownership, is not contrary to public policy or open to objection.

It is to be borne in mind that the plaintiff and Dolphin, under the agreement of October 14, 1887, were joint owners of the inventions transferred to the corporation, and were partners in the business of developing and patenting those and similar inventions. Evidently this relation existed when the contracts in question were made, and they related to a part of that business. The relation between Hey and Dolphin was not terminated, but changed. The common property assumed another form, and its management for a definite period, for reasons satisfactory to themselves, and not, as between themselves, illegal, was intrusted to one of the parties. This was the effect of the power of attorney. The consideration for this was ample, as it was a part of the transaction of the sale of the inventions and the purchase of the stock. It may be assumed that neither of the parties would have assented to the sale and purchase only on those conditions. The right to a partition may be waived 17 Am. & Eng. Enc. Law, 693, and cases cited. As partners or as tenants in common, Hey and Dolphin had the right to deal with the corpus of the stock as a unit, and it is difficult to see why it it would be any more against public policy for them to withdraw it from the market for a definite period than it would be for an individual to do so under the same circumstances, or that any illegal restraint of trade would be ao complished. Hodge v. Sloan, 107 N. Y. 244; 11 St. Rep. 770. The nature of the ownership was such that one could not sell without the consent of the other. 1 Cook, Stock, Stockh. & Corp. Law, § 429. We are of the opinion that the court erred in holding that the provisions complained of were void as agaist public policy.Hor should it be said that the power of attorney was revocable at the pleasure of the plaintiff. It was a power given for a consideration, and Dolphin had an interest in the property itself. The stock being issued to the two together, the power of attorney or proxy was necessary in order to carry out the arrangement. In re Pioneer Paper Co., 36 How. Prac. 111; 1 Thomp. Corp. § 731. In Story, Ag. § 477, it is said that where an authority or power is coupled with an interest, or where it is given for a valuable consideration, it is from its own nature and character id contemplation of law irrevocable, unless there is an express stipulation to the contrary.

The plaintiff further claims that the power of attorney or proxy is revocable under the provisions of section 21 of the general corporation law (chapter 687, Laws 1892), which, as far as it is important here, is as follows:

“Every proxy must be executed in writing by the member himself, or by his duly authorized attorney. Ho proxy hereafter made shall be valid after the expiration of eleven months from the date of its execution unless the member executing it shall have specified therein the length of time it is to continue in force, which shall be for some limited period. Every proxy shall be revocable at the pleasure of the person executing it; but a corporation having no capital stock may prescribe in its by-laws the persons who may act as proxies for members, and the length of time for which proxies may be executed.”

This act was passed after the contracts in question were made, but it is claimed to be effective here under the reservation power in the legislature to amend or modify a law relatingto a corporation. It is not clear that this act in this regard was intended to be retroactive. Railroad Co. v. Van Horn, 57 N. Y. 477. Besides, the power of attorney or proxy here considered is not of the ordinary character. Had plaintiff not given it, he could not have voted on the stock without the consent of Dolphin. Neither could vote on it without the consent of the other. In re Pioneer Paper Co., supra. The statute referred to is not, we think, applicable here.

.It seems to us that the court erred in holding as matter of law that the provisions of the contract for not disposing of the stock for the period of ten years without the consent of both parties were illegal, and that the power of attorney, was void and revocable. The contracts, as between the plaintiff and Dolphin, were quite analogous to a partnership arrangement for a definite period, and we see no good reason for allowing one party to terminate it at his pleasure. If the plaintiff can show a good reason for a termination of the relation, it is to be assumed that he will get relief. That question is not before us, nor is the question as to whether some other stockholder may not have a right to intervene.

Judgment reversed, and new trial ordered; costs to abide the event.

All concur.


author: HARDIN, P. J.

text:
    Edwin Wilcox, Resp’t, v. Wilbur H. Selleck, as Sheriff, etc., App’lt.

      (Supreme Court General Term, Fourth Department,

      Filed December 26, 1895.)

    Witness—Credibility—Party in interest.
    It is error to direct a verdict for the plaintiff on Ms own testimony and that of his father, where there .is evidence that the father has an interest in the subject-matter of the action.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    The value of the property was agreed at $500, and the damages for detention were agreed to be $50; and, pursuant to the direction of the court, the jury found “that the plaintiff was the owner and entitled to the possesion of the property described in the complaint, at the time the same was levied” upon by the defendant as sheriff. At the close of the evidence, when the court directed the jury to find a verdict that the title to the property was in the plaintiff, and that he was entitled to the possession thereof at the time of the commencement of the action, and that, as owner, he was entitled to the possession, the defendant took an exception, and asked to go to the jury on the' question whether the plaintiff was the owner and entitled to the possession. The request was refused, and an exception was taken. Defendant then asked to go to the jury upon all the questions of fact in the ease, and that was refused, and an exception was taken. The defense was a denial of the plaintiff’s ownership; and, secondly, that the sheriff, in virtue of an execution issued upon a judgment rendered in favor of Alfred B. Tuttle against Eugene B. Wilcox, had levied upon the property as the property of Eugene B. Wilcox, the judgment debtor. Proof was given of the judgment, and of the execution of the levy.
    William Ross, for app’lt;
    S. B. Mead, for resp’t.
   HARDIN, P. J.

A careful perusal of the evidence leads to the conclusion that there was some evidence given upon the trial which, if accredited by the jury, would have warranted a verdict in favor of the defendant. Several witnesses were called, who gave testimony which, if accepted entirely as given, would warrant us in sustaining the verdict as directed. The plaintiff .and his father were so situated with reference to the controversy that the jury would have been authorized to disbelieve their testimony in part or in whole. We think the question of their credibility was for the jury, and that a case was presented, which ought to have been submitted to the jury, as to whether the ownership of the property at the time of the levy by the sheriff on the execution against Eugene B. Wilcox was in Eugene B. Wilcox, or whether it was in the plaintiff. Elwood v. Telegraph Co., 45 N. Y. 549; Longyear v. Insurance Co., 20 Wkly. Dig. 165; Carbon Works v. Schad, 38 Hun, 71; Dean v. Van Nostrand (N. Y.), 4 N. E. 134; Roseberry v. Nixon, 58 Hun, 122; 33 St. Rep. 981; Quock Ting v. U. S., 140 U. S. 422; Goldsmith v. Coverly, 27 N. Y. Supp. 116. The rule seems to be well settled that a jury is not bound to believe an improbable statement made by a witness, or a statement made by a witness who has an interest in the question at issue, and that juries are at liberty too scan, doubt, and question statements made by parties in interest in a suit, as well as their near relatives, who are interested in the success or defeat of the action in which they are called upon to testify. Evi-' dence was given by the witness Stephenson and the witness Blake, who testified to a conversation in the presence of the plaintiff which, to a considerable extent, tended to support the theory of the defendant, that, at the time of the levy, Eugene B. Wixcox had an interest in the property levied upon. We think the judg

at the trial committed an error, in refusing to submit the question, of fact to the jury. Powers v. Silberstein, 108 N. Y. 169; 13 St. Rep. 125; McCann v. Sixth Av. Railroad Co., 117 N. Y. 505;. 27 St. Rep. 834.

Judgment reversed, and a new trial ordered, with costs to abide the event.


author: GAYNOR, J.

text:
    Samuel D. Merrill, as General Guardian, etc. Plaintiff, v. Herman Reiners et al., Defendants.

      (Supreme Court, Kings Special Term,

      Filed December, 1895.)

    Mobtoa&e—Surety—Rele ase .
    For the payment of the mortgage debt, the maker of the bond and mortgage and subsequent grantees who assume payment thereof stand successively in the relation of sureties to subsequent grantees who assume the said debt, and their liability is discharged by an extension of the time of payment by the holder of the bond and mortgage to the owner.
    Action by Samuel D. Merrill, as general guardian.
    John Brunnemer and John Oakley, for pl’ff;
    Ira Leo Bamberger, for def't Reiners.
   GAYNOR, J.

The land being owned by defendant Conklin, he made a mortgage thereon to defendant Bisehoff for $3,000, dated ¡November 1, 1894, to secure the payment of his bond'for that amount, due on demand. He afterwards conveyed the land to defendant Reiners, subject to the mortgage. Later, viz., on ¡November 12, 1894, he entered into a written agreement with Reiners, by which the payment of the bond and mortgage was extended to ¡November 1, 1895, and Reiners agreed to pay the same. Afterwards Reiners conveyed the land to defendant Thompson, subject to the mortgage, and Thompson conveyed to-defendant Martin, subject to the mortgage, Martin also assuming the mortgage debt. Afterwards the said mortgagee, Bisehoff, assigned the bond and mortgage to the plaintiff, and later, viz., on April 10, 1895, the plaintiff entered into a written agreement with the said owner Martin, by which the payment of the said, bond and mortgage, was in terms extended three years from its date of ¡November 1, 1894, which was'an additional extension of two years. Though Bisehoff, the mortgagee, had extended the time of payment, to ¡November 1, 1895, by agreement with defendant Reiners, while he was the fee owner, and the plaintiff, arter the assignment of the bond and mortgage to him, had extended the payment thereof two years more, by agreement with Martin, the then fee owner, this action was begun on September 13, 1895, which was before the expiration of the first extension. It was begun upon a default in the payment of three months’ interest, which had come due on August 1, 1895 [the interest being payable quarterly), and upon the election of the plaintiff to make the principal due for such default, as was his right by the terms of the mortgage. A deficiency judgment is prayed for against the said defendant Reiners. He resists it upon the ground that he became discharged from his liability for the mortgage debt by the said extension by the plaintiff to Martin, but it is contended that, as default was made before the period of the first extension had expired, and this action was brought thereon, he is liable. It is said that his agreement in the extension to him to pay the mortgage debt on November 1, 1895, could not be affected by the second extension until the period of that extension began. I do not see how this can be so upon principle. The rule is that for the payment of the mortgage debt the maker of the bond and mortgage and subsequent grantees who assume payment thereof stand successively in the relation of sureties to subsequent grantees who assume the said debt, and that their liability is discharged by an extension of the time of payment by the holder of the bond and mortgage to the owner. Calvo v. Davies, 73 N. Y. 211; Kane v. Cortesy, 100 N. Y. 132; Murray v. Marshall, 94 N. Y. 617; Paine v. Jones, 14 Hun, 577. It is said that the defendant Reiners was not injured by the second extension, as the period, of it was never reached, and that, therefore, he is not discharged by it. But that does not seem to be allowable as a test. Courts will not enter into' the question of what injury the surety sustained. The change in the contract effects such discharge, for he is not liable upon the changed or new contract, and that is the only one which can be sued upon. Calvo v. Davies, supra; Paine v. Jones, supra; Ducker v. Rapp, 67 N. Y. 473. TV hen the contract was changed, defendant Reiners was not obliged to continue to pay the interest until the new extension period was reached, in order to end his liability. If he had done so, he would not now be able to have himself subrogated to the security of the mortgage in order to reimburse himself thereby.

It is argued that the plaintiff did not know of defendant Reiners’ liability, and that, therefore, the act of the plaintiff in extending the time could not have discharged him. Niemcewicz v. Gahn, 3 Paige, 614; Elwood v. Deifendorf, 5 Barb. 398. I do not see how that rule has any application here. The liability of Reiners for the debt passed to the plaintiff as incident to the ■ bond and mortgage. The presumption is that he knew of it. In extending the time, the plaintiff knew that he was releasing all prior owners who had assumed the mortgage debt, and that is enough, for he was charged in law with knowledge that in the ordinary course there might be, and probably were, such assumptions.

Judgment for defendant Reiners, with costs. •


text:
    Jerome R. Petrie, Resp’t, v. Trustees of Hamilton College App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Judgment—Correction.
    Where, in an equitable action, the words “on the merits,” are not found in the report of the referee, there is no warrant for their insertion in the judgment, and it is the right of the plaintiff to have these words stricken from the judgment or the judgment vacated, to the end that the judgment should contorm to the decision of the referee.
    2. Same—Sending case back to referee.
    In such case, the case will not ordinarily be sent hack to the referee for decision as to whether the dismissal should be on the merits.
    Appeal from an order, vacating a judgment dismissing the complaint on the merits.
    ; The order contained the following provision: “Ordered, that the judgment entered and docketed in this action on the 29th day of May, 1895, be, and the same hereby is, referred back to said referee William Hernán, Esq., with leave to further report, or to change his decision or direction for judgment and conclusion of law so that the same shall express his precise and full intention with reference to dismissing the complaint upon the merits, or not upon the merits, but without prejudice to a re-entry of judgment upon the corrected report, to the same force and effect as if no judgment had heretofore been entered herein.”
    C. D. & S. C. Adams, for app’lts;
    L. M. Martin, for resp’t.
   HARDIN, P. J.

May 29,1895, the referee made a report, in which is found the following language:

! Upon the evidence given upon the trial, I find and decide that the plaintiff has failed to make out and maintain his alleged grounds and causes of action, or either of them, and that his complaint should be dismissed. * * * I therefore decide that th^ complaint of the plaintiff should be dismissed without costs, and judgment is ordered accordingly.”

On the same day the defendants entered a judgment which contained the following language:

“It is adjudged that the plaintiff’s complaint in. this action be, and the same hereby is, dismissed on the merits, without costs.”

Evidently, it was the intention of the defendants, when they inserted in the judgment the words “on the merits,” to avail of the provision found in section 1209 of the Code of Civil Procedure. That section declares that a judgment dismissing the complaint “does not prevent a new action for the same cause of action, unless it expressly declares or it appears by the judgment roll that it was rendered upon the merits.” If those words had been allowed to remain in the judgment, no question or doubt would remain as to the force and effect to be given to the judgment, as it was made to expressly declare, by the language used therein, that the judgment was “on the merits.” It seems section 1209 was adopted for the purpose of applying the common-law rule to equitable actions. Wheeler v. Ruckman, 51 N. Y. 391. By an inspection of the complaint, it is clear that this was an equitable action, in which the plaintiff sought equitable relief. Inasmuch as those words were not found in the report of the referee, there was no warrant for their insertion in the judgment, and it was therefore the right of the plaintiff to have those words stricken from the judgment, or the judgment vacated, to the end that the judg-: ment should conform to the decision of the referee.

In Card v. Meincke, 70 Hun, 382; 54 St. Rep. 285, it was held:

“The clerk can only enter a judgment as directed by the decision filed, or upon a subsequent approval by the trial judge of the judgment proposed to be entered. Where the decision is simply that judgment be entered in favor of defendants, and against plaintiff, an entry of judgment dismissing the complaint ‘upon the merits’- is erroneous.”

In that case a motion was made to amend the judgment by striking out the words “upon the merits.” In the course of the opinion delivered, it was said:

“In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words ‘upon the merits.’ ”

See, also, Freeman v. U. S. El. Light Co., 59 Hun, 341; 36 St. Rep. 542.

Doubtless, in the case before us, the special term might have eliminated from the judgment the words “on the merits.” It, however, had power to vacate and set aside the judgment.

The power of the court over its own judgments, “and its habit to exercise it,” were fully declared in Hatch v. Bank, 78 N. Y. 487. In the course of the opinion in that case it was said:

“It is an inherent power, and not limited in matters of substance by the sections of the Code.”

This court followed the doctrine of that case in Underwood v. Sutcliffe, 21 Hun, 357, as will appear to have been explicitly stated by reference to the opinion of Talcott, P. J. The power was again declared in Kiefer v. Grand T. Railway Co., 28 St. Rep. 474, and again in Ladd v. Stevenson, 112 N. Y. 325; 20 St. Rep. 746. It is correct practice, where a judgment upon a referee’s report is incorrect under it, to apply by a motion to have the judgment corrected. Decker v. Decker, 108 N. Y. 128; 13 St. Rep. 131; People v. Goff, 52 N. Y. 434; Kenney v. Apgar, 93 N. Y. 539.

We must now consider the second branch of the order, which requires the cause to be referred back to the referee, with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits, or not upon the merits.

In McLean v. Stewart, 14 Hun, 472, this court held that, after a decision had been made and filed in a cause, a subsequent special term had no power to alter the judgment upon motion as to matters relating to the merits, and that such a change coijld only be made after a rehearing before the trial judge upon the case being sent back to him, or after a review by an appellant court. That case has been referred to with approval in Rockwell v. Carpenter, 25 Hun, 532; and in Rosa v. Jenkins, 31 id. 384; and in Jones v. Jones, 71 id. 524; 54 St. Rep. 885. The practice of sending a case back to a referee for further findings has, in certain cases, been upheld.

In Wright v. Sanders, 28 How. Prac. 395, the referee was ordered, “upon the proofs and allegations already made and taken before him,” to make a new report, stating all the material facts found by him, with his conclusions of law separately. That practice seems to have been approved in Carroll v. Railway Co., 65 Barb. 33, and in Rogers v. Wheeler, 52 N. Y. 262.

In McLean v. Stewart, supra, in the course of the opinion, it was intimated that, where changes are sought only upon a special motion relating to the merits, they “should be allowed only after a rehearing before the trial judge upon the case being sent back to him.” It is to be observed that the order appealed from' does not provide an oportunity for the parties to again be heard before the referee. Again, it appears that on the 10th of June, 1895, plaintiff served exceptions to the referee’s report; and, on the 14th of June, a notice of appeal from the judgment was served and an undertaking, and the plaintiff commenced preparing a case to be used in connection with the appeal.

In Gardiner v. Schwab, 34 Hun, 582, it was held that the “report of a referee cannot be sent bach to him with instructions to make additional findings of facts or conclusions of law.”

In Bank v. Levy, 41 Hun, 461, the court followed Gardiner v. Schwab, supra; and, in the course of the opinion, Landon, J., said:

“We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged; and, if allowed in any case, it should be only to supply some merely technical or clerical omission; not to reinvest that officer with judicial functions touching the case theretofore submitted for his decision. The necessity and propriety of such action should be clear.”

In accordance with that doctrine, we are inclined to say that that part of the order which referred the case back to the referee should fall. No clear necessity for it was presented by the motion papers. Heath v. N. Y. Building L. Banking Co., 146 N. Y. 260; 66 St. Rep. 632. Besides, the plaintiff had taken an appeal from the judgment, and had filed exceptions to the referee’s report before the motion was noticed, requiring a further decision from the referee.

We think the order appealed from should be modified by striking therefrom as much as refers the cause back to the referee, with leave to further report, or to change his decision or direction for judgment and conclusion of law, so that the same shall express his precise or full intention with reference to dismissing the complaint upon the merits, or not upon the merits, and, as so modified, should be affirmed, without costs of the appeal to either party.

Order modified in accordance with the views stated in the opinion, and, as modified, affirmed, without costs to either party.

All concur.


text:
    Truman K. Fuller Resp’t, v. Margaret Tolman, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Appeal—Conflicting evidence.
    The finding of a referee, on conflicting evidene, will not be disturbed on appeal, though the appellate court, from, evidence, might have found differently.
    3. Evidence—Opinions—Hypothetical questions.
    Hypothetical questions must be based upon proofs in the case and must not go outside of the facts, as to which some evidence has been given and which can be assumed as a possible truth. So held, in an action for attorney’s services, where defendant agreed that a hypothetical question as to the value of the services might be asked before all the evidence relating to the facts stated on the question had been received.
    Appeal from a judgment rendered in favor of plaintiff.
    Henry B. Tolman, the defendant’s husband, died on the 12th ■of December, 1889, leaving a last will and testament, whereby he devised and bequeathed all his property, both real and personal, to her, and nominated her as executrix of the will. At the time - ■of his death he was owner of real estate of about 200 acres of a farm situated in the town of Lafayette, upon which he had spent the most of his life, and about 4.16 acres of land in the city of Syracuse. The referee finds the fair market value of the real estate, at the time of the decease, was $13,500; and he also finds-that there was about $200 in value of personal property, and debts amounting to about $2,500 against the estate. He also found that the plaintiff is an attorney and counselor, and has been engaged in the practice of his profession for twenty-five years in the county of Onondaga, and that on the 16th of December, 1889, a petition was presented in behalf of the defendant to the surrogate of Onondaga county for the probate of her husband’s will. Through James W. Tolman, a brother of the deceased, she employed the plaintiff to attend to the procuring of the prpbate of the will. On the return day of the citation a son of the deceased apeared with counsel, and filed objections to the probate of ther will, in substance, as follows: “(1) That the paper presented w;as not the will of the deceased, and that its execution was not his-free and voluntary act. (2) That the will was procured to be executed through undue influence. (3) That the will was not subscribed, published, and executed according to the statute. (4) That the paper was invalid as a will. (5) That the execution was procured by fraud, deceit, and. undue influence on the part of .the devisee named in the will.” . Evidence was taken under the petition and objections, and the will was admitted to probate by a de~ ere of .the surrogate. The referee finds:. “The plaintiff was necessarily in the surrogate’s court during the pendency of said proceedings, engaged in the case, on seven different days, but all of the time of those days was not actually spent in court on said matter.” The referee also found: “Before the said will had been admitted to probate, and oh April 1, 1890, the said contestant commenced an action in the- supreme court for the purpose of determining the validity of said will, alleging substantially the same grounds as were contained in the objections filed in surrogate’s court, making the said widow and next of kin parties defendant.” The appellant here retained the plaintiff here to defend the action, and he drew and served her answer to the complaint, and the-issues involved in the action were settled at a special term September 8,1890, and the cause was on the circuit calendar for October , 1890, and when it was reached it was moved for trial. “No one appearing for' plaintiff therein, the complaint was dismissed, and a judgment.of dismissal and for costs entered.”. The referee finds, viz.: “The plaintiff herein prepared comprehensive and exhaustive briefs upon the questions involved, in both surrogate’s court and the supreme court, and made careful preparation for trial in each court, and was ready for trial when the case was reached. The plaintiff devoted ten days in court and forty-five days out of court to the said causes." The said several days in court were not wholly given to that work, but were set apart for that purpose by the plaintiff, and some part of each day given to it. The result of the litigation was favorable to the devisee in the will, this defendant, and the value of plaintiff’s services in the said matters alleged in the complaint is ■ $1,250.” He also finds that a bill was rendered to the plaintiff, about the 16thof December, 1890, to< the defendant, and that about the 2d of April, 1891, the plaintiff received through the mail a check of James W. Tolman for $300 “for Margaret Tolman.” The check was acknowledged the same day, and a statement was made by the plaintiff “that’he would not accept $300 for his bill.” In April, 1891, the plaintiff sent another bill to the defendant, which is set out in the complaint, amounting to $1,900, giving, credit for $300, leaving a balance of $1,600. No response was made to that bill, and this action was brought on August 5, 1892. The referee stated, as conclusion of law, that the plaitifE is entitled to recover “the value of his services rendered, to wit, $1,250, less the sum of $300 paid on the account, leaving the sum of $950, with iterest thereon from April 12, 1891,” and he stated the interest to be $209,50, and awarded a judgment for $1,159.50, with costs.
    Wilson, Kellogg & Wells, for app’lt;
    Fuller & Glenn, for resp’t.
   HARDIN, P. J.

Upon looking into the evidence we are satisfied that it sustains the finding of fact, made by the referee, to the effect that the plaintiff devoted ten days in court and forty-five days out of court in the service of the defendant, and that there is evidence fully sustaining the finding of the referee that the value of the services rendered by the plaintiff for the defendant was 1,250. Recognizing that this court has the power to review the evidence, and to interfere with a finding of fact made by a referee, as stated in Farren v. McDonnell, 74 Hun, 176; 56 St. Rep. 354, and Baird v. Mayor, etc., of New York, 96 N. Y. 576, we have carefully considered the evidence in the light of those authorities, and have reached the conclusion that we are not at liberty to say that the findings are against the weight of evidence, or that the proofs given at the trial clearly preponderate in favor of a different result from that stated by the referee. Therefore, we. may not disturb his findings of fact. On the contrary, we must accept the same as a fair solution of the conflict found in the evidence which was delivered before him. Van Epps v. Harns, 88 Hun, 299; 68 St. Rep. 261. The witnesses that were called to speak of the value of the real estate left by the deceased differ very widely in their estimates of its value, and it seems the referee has accepted the medium valuations given by the witnesses, indicating that he did not believe the extreme value put upon it by some of the witnesses for the plaintiff, nor the meagre value put upon it by some of the witnesses for the defendant.

In Randall v. Packard, 142 N. Y. 47; 58 St. Rep. 415, it was stated that several circumstances must enter into the computation or estimate of the value of the services of an attorney and counsel, and among them the amount involved, pecuniary ability of the client, and that an attorney “deserves compensation according to the reasonable worth of his services.” And it was added:

“Of that the jury are the sole judges, and, to arrive at their value, they may consider the nature of the servises rendered, the standing of the attorney in his profession for learning, skill and proficiency, the amount involved, and the importance to his client of the result.”

And in the course of the opinion from which we have already quoted it was said:

“Whatever our opinion might still be as to the amount awarded by the jury, upon the evidence before them, we are concluded from any expression by their verdict, and if there was no error-committed upon the trial, the judgment must stand.”

In the case in hand we are constrained to say that, whatever our •opinion might be, upon reading all the evidence found in the appeal book, as to the value of .the services rendered by the plaintiff, and the amount of the compensation which he justly should receive therefor, the action of the referee forecloses our interference .as to the amount of the award made to the plaintiff. There was •quite an extensive conflict in the evidence, and it was eminently within the province of the referee to determine what credibility •should be given to each witness speaking upon the subjects embraced in the trial, and to award such credibility to one set of witnesses or another set of witnesses; and having faithfully, as we •assume, performed the functions of a referee, we are called upon to accept his conclusions upon the whole body of the evidence, presented to him relating to the question of the value of the services Tendered by the respondent for the appellant.

In Garfield v. Kirk, 65 Barb. 464, discussion took place over the measure of the value of an attorney’s services, and in speaking •of the proof to be given thereof, Muffin, P. J., said:

“It is enough for him to prove, in general terms, the proceedings in the cause, the time occupied in the performance of any part of the services, by which their value was enhanced, and the value of the whole, or in detail, as he may elect.”

Apparently tliat-rule was fairly observed in the trial before the learend referee: ,

2. It is claimed in behalf of the appellant that an error was committed in allowing witnesses to answer hypothetical questions which were propounded to them. It seems that, after the plaintiff had given some evidence as to the general features of the case, •and as to the general circumstances attending the services which he had rendered, and after he had stated as a witness that the services which he had.rendered “were actually worth $2,500, but that is more than I (he) charged them in my (his) bill. They were easily worth $1,900.50. .That is the amount of the bill I presented,”—and after he had caused to be produced certain letters which had passed between him and the defendant, his direct •examination was suspended “to allow a hypothetical question to be propounded to expert witnesses.” Thereupon Mr. Andrews was called as a witness in behalf of the plaintiff, and stated that he was acquainted with the value of legal services, and then there •was propounded to him, in behalf of the plaintiff, a hypothetical ■question, which had been prepared with considerable care, and ■evidently intended to embrace the facts which were not yet fuhy disclosed, but were to be disclosed by the extent of the evidence to be given by the plaintiff before resting. The hypothetical ■question covers over ten pages of the printed appeal book, and while it was being delivered to the witness, apparently, the plaintiff' handed a brief to the witness, accompanied with a statement that “the brief to which I have alluded was much more voluminous than the brief which I hand to the witness.” At the close of the leading question, the examining counsel observed: “Assuming the above facts to be true, what, Mr. Andrews, do you say the services of the plaintiff were worth, in the entire proceeding and litigation?” Thereupon the defendant took numerous objections to the question, and in response thereto the counsel for the plaintiff alluded to an agreement, apparently, that had been made between the counsel in respect to the time in which the question should be propounded. In response thereto the appellant’s counsel observed, “I make this for the purpose of getting it upon the record,”—apparently referring to the objection that he had stated. In response thereto the referee observed, “What the counsel means, and as I understand it, it was arranged before dinner that Mr. Fuller’s testimony would be suspended to allow the hypothetical question to be propounded to the expert witnesses, and that their cross-examination be postponed until counsel has an opportunity to cross-examine Mr. Fuller.” Some further remark was made by the counsel for the defendant, and then the referee observed: “That is the arrangement between counsel. Of course, the referee is satisfied,”—and apparently ruled that the question might be answered, and the defendant took an exception. Thereupon the question was, to some extent, modified by the counsel for the plaintiff, particularly as to the number of acres of land, and the assumption was made that the property was worth from $20,000 to $27,000. Then the witness was asked, “What do you say for such services?” The answer given by Mr. Andrews was as follows: “I should think $2,500 would be a fair compensation.” He was then extensively cross-examined, and thereafter the plaintiff returned to the stand and gave further evidence in detail, and was cross-examined at great length, and thereafter Mr. Hunt was called, and the hypothetical question was repeated to him, and against an objection thereto, and an exception taken by the defendant, the witness stated, in answer to the question, that in his opinion the services were worth $2,500. He was extensively examined and cross-examined, and thereupon the plaintiff was recalled, and gave further evidence in respect to the circumstances attending the services, and was further cross-examined with great particularity. Subsequently Mr. Hancock was called as a witness to testify as to the value of the plaintiff’s services, and a hypothetical question, similar to the one propounded to Mr. Andrews, was asked of the witness, and no objection seems to have been taken to the question as propounded to him. His answer was, VI should say that the value of the plaintiff’s services were, for the entire litigation, $2,000.” Subsequently Mr. Hoyt was called as an expert, and after the hypothetical question was put to him, it was modified in some slight respects, aud it seems that the brief that had been prepared was put into the hands of the witness. The counsel for the defendant objected to the question in general terms, but did not specify in any particular respect wherein the question was erroneous. The objections made by the defendant were overruled, and exception taken, and the witness answered: “Assuming the facts stated in that question to be true, I should say the services were worth $2,500.” Subsequently Mr. Celyon H. Lewis was examined, and answered the hypothetical question, against the defendant’s objection and exception, and estimated the services at $2,300. Mr. Louis Marshall was called, and the hypothetical question was read to him, and his estimation of the value of the services was $2,000. And thereafter Mr. M. M. Waters, who had acted, as counsel in the surrogate’s court for the appellant, was called, and the hypothetical question was propounded to him, and after objections thereto were overruled, and an exception taken, he said:

“Assuming all the facts detailed in the question, my judgment is that the charges of the attorney for those services, exclusive of the counsel fee, should be worth $1,600, and upon the subject of counsel fee it seems to me that is a case—the question assumes a case—which would entitle the attorney to a counsel fee of probably $500. All this is assuming that the facts are as I have stated. I will base my opinion on the facts stated in the question.”

Giving effect to the agreement that was made by the counsel in the early stage of the trial, that the hypothetical question might be propounded before all the evidence was given which related to the details embraced in the question, we are of the opinion that no error was committed in allowing the witnesses to answer the hypothetical question. Evidently, the counsel attempted to keep within the rule relating to hypothetical questions, to wit, that such questions must be based upon proofs in the case, and must not go outside of the facts as to which some evidence has been given, and which could be assumed as a possible truth. People v. Smiler, 125 N. Y. 717; 35 St. Rep. 1; Carpenter v. Blake, 2 Lans. 206; People v. Harris, 136 N. Y. 424; 49 St. Rep. 751; Bramble v. Hunt, 68 Hun, 204; 52 St. Rep. 92; In re Mason, 60 Hun, 46; 38 St. Rep. 533.

3. It is claimed an error was commited in allowing the question propounded to the plaintiff at folio 68, viz.: “Q. What did you learn to be its value ?” In answer to the question, the witness stated that he learned, from the party who had charge of the matters for the plaintiff, and who came several times to him on behalf of her business, and who was subsequently called and testified as to the bill, of his interviews with the plaintiff, and as to the litigation and the features thereof generally, and a motion was made to strike out the evidence, and thereupon the counsel for the plaintiff stated: “I am willing, and ask that it be stricken out. The valuation that was given by James Tolman after the services were completed.” In response to that motion the referee said, “Granted.” We think, under the circumstances, the exception is unavailing to the appellant.

4. The referee seems to have been liberal in allowing cross-examination of the plaintiff, and we think he had the right to exercise some discretion, and that he did hot commit any error in the restriction which he placed upon the cross-examination.

Some other exceptions were taken during the trial, and arc alluded to in the appellant’s points. They have received attention, and it is not found that any of them present such an error as warrants us in interfering with the report of the referee. We think his conclusions upon the whole evidence, to wit, that the services of the plaintiff were worth $1,250, and that he has received $300 in payment thereon, and that he is entitled to recover the balance, with interest from the time stated in the report, should be sustained.

Judgment affirmed, with costs.

All concur.


author: HATCH, J.

text:
    Isaac Davis, Resp’t, v. Grand Rapids Fire Insurance Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Pleading—Complaint—Insurance.
    Where the complaint in an action on a fire insurance policy states the issuance of the policy to plaintiff, describes the property insured in the same words as used iu the policy and makes the policy a part of the complaint, and the policy requires unconditional and sole ownership by plaintiff, the written consent of the company to be attached or appended to the policy in the event that interests other than those possessed by the insured exist and that the property should be the insured’s own, held in trust, but not removed, such requirements are to be construed as forming part of the complaint, and both together show that the insured was owner or holder in trust of the property when the insurance was effected, and it will be presumed that he continues as such owner or holder, in the absence of anything upon the policy to show that any one else held or had acquired any interest therein at the time.
    2. Same—Amendment on appeal.
    Where the evidence establishes sole ownership in the plaintiff, it is the duty of the appellate court to amend the complaint to conform thereto, if essential to support the judgment.
    3. Insurance—Proofs qf loss.
    Where, in an action on a fire insurance policy for goods totally destroyed by fire, it appears that the company, in objecting to the proofs of loss, required the insured to make a complete inventory, stating quantity and quality of each article, and amounts claimed thereon, and the cash value of each item and the amount of loss thereon, and there is an impossibility of compliance in this respect from the fact that the goods not specified in proofs of loss were burned, and, as to the goods not burned, the representative of the company and the insured made an inventory, the proofs of loss are not open to the objection that the insured failed to comply with the requirements of the policy.

      4. Same—Incumbrances.
    Where the proofs of loss state that the property belonged to the insured and no other person or persons had any interest therein, they state, in effect, that there was no incumbrance on it.
    6. Same—Conditions—Breach.
    Where the liability has been fixed by a loss which is brought within the range of the policy, the insured will not be deprived of his right to indemnity by a narrow and technical construction of the conditions and stipulations which prescribed the former requisite, by which that right is .to he made available; on the contrary, a liberal and reasonable construction,of them will be given. So held, where a fire insurance policy, giving the company the option to take all or any part of the articles insured at an apprised value “within a reasonable time, on giving notice, within thirty days after the receipt of the proof herein required of its intention to do so,'” and it appeared that the fire occurred November 10; that the company was immediately notified; that the proofs of loss were dated November 29tli, and received by the company December 5th; that the insured sold the goods at auction November 29th; that notice of the sale was published in the daily papers three days before the sale; that the company was notified of it by telegram; that several people were at the sale; that the company’s agent had previously taken an inventory; that no demand for any other appraisement was made; that, by the terms of the policy, the insured could not abandon the property to defendant, and it did not appear that the goods were worth more than the price obtained.
    , Appeal from a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Adelbert Moot, for app’lt;
    Moses Shire, for resp’t.
   HATCH, J.

We have read with care the voluminous record in this case, and with interest the exhaustive discussion of the testimony in the "brief submitted by the learned counsel for the appellant; and, while we find much testimony and some basis for .suspicion respecting the entire integrity of the claim of loss and its extent, we are constrained to hold that plaintiff’s claim did not lack a sufficient support of testimony to present a question of fact for the jury to decide, upon all the essential features requisite to find the verdict in his favor. It might he of interest to the parties^ if not satisfying to each, to here set down the testimony and process of reasoning by which we reach this result, but it would prove of little value and establish no precedent.

Respecting plaintiff’s interest in the property, the complaint was sufficient. It states the issuance to plaintiff of the policy, describes the property insured in the same words as used therein, and makes the same a part of the complaint. Reference to the eleventh clause in the policy shows that its requirement was unconditional and sole ownership; and by the fifty-sixth clause the written consent of the company is required to he attached or appended to the policy in the event that interests other than those possessed by the insured exist. Referring to the language descriptive of the property and its ownership, the requirement is that it shall he his own, held in trust, but not removed. These requirements are to "be construed as forming a part of the complaint, and, in substance, the allegations and policy show that the plaintiff was owner or holder in trust of the property when the insurance was effected; and that he so continued as owner or holder will be presumed, as nothing appeared upon the policy to show that, any one else held or had acquired any interest therein at any time. If, however, the rule were different, the, evidence establishes sole ownership in the plaintiff, and it would now be-our duty to amend the complaint to conform thereto, if Essential to support the judgment. Harris v. Tumbridge, 83 N. Y. 92.

' In defendant’s motion for a nonsuit, at the close of the plaintiff’s case, and more especially at the close., of the proof, it is claimed that plaintiff had failed to show compliance with the con-. ditions of the policy subsequent to the fire in several particulars. It is not denied but that notice oE the fire was immediately given at the agency rom which the policy issued, and, if we assume that this was insufficient, it appears, in fact, that this notice was brought home to the company, and that, in fact, their representative was at the scene of the fire shortly after it occurred. The proofs of loss bore date FTovember 29, 1893, and were stamped as received by the company on December 5th. The fire occurred FTovember 10th. In respect, therefore, to the notice of the fire and the time of filing proofs of loss, there was a substantial compliance with the requirements of the policy. The proofs of loss were retained by the defendant without objection, so far as the record shows, until January 2, 1894, nearly a month from time of reception, when a letter was 'written objecting to the same, and requiring further proof in that regard. It has been settled that retaining proofs of loss without objection is a waiver of any defects contained therein. Keeney v. Insurance Co., 71 N. Y. 396. And where the company retained proofs of loss for a period of twenty-three days, and then returned them, coupled with circumstances showing want of good faith on the part of the company, it was held that the jury were authorized to find a waiver of the conditions. Paltrovitch v. Insurance Co., 143 N. Y 73; 60 St. Rep. 462. The rule would therefore seem to be that where proofs of loss are retained or held for a time, and then returned, dependent somewhat upon the particular circumstances of the case, it may be made a basis for the jury to find a waiver of compliance with the conditions.

The first objection which the company made required plaintiff to make a complete inventory, stating quantity and cost of each article, and amounts claimed thereon; also cash value of each item, and amount of loss thereon; all incumbrances thereon, and any changes in the title, use, occupation, location, possession, or exposure of the property since the issuing of said policy. The plaintiff replied to the first two objections, under date of January 9th, claiming that, as the goods not specified in the proof of loss were burned, there was an impossibility of compliance in that respect, and that the parties woiild be, of necessity, relegated to the books to determine it; as to the third, that the proofs stated there was no incnmbrance; and the last, that there had been no change. Reference to the proofs of loss shows that the claim as stated was based upon the inventory of purchase, goods since purchased, labor on made-up garments, less the sales, profits thereon, and what was realized upon the sale of stock after the fire. The claim being for goods absolutely destroyed by the fire, the proofs of loss could not practically contain an itemized statement of them, and plaintiff was right in insisting that impossibilities were not required, and that the clause in the' policy related to goods saved from the fire, not those that were burned. As to those not burned, defendant’s representative made an inventory, in company with a representative of plaintiff. The first two objections were therefore without merit. The proofs stated that the property belonged to the assured, and no other person or persons had any interest therein. This was a practical statement that there was no incumbrance upon the property. The last ground of objection is found stated in the proofs of loss in nearly the identical words of the objection. It therefore appears with some clearness that the objections to the proofs of loss authorized the jury to find that defendant waived whatever of defects there wefe.

It is further claimed that plaintiff violated the provisions of the policy in selling the goods. It appeared that the goods were sold at auction on November 29th, Tuesday; that notice of the auction was published in two daily papers on the Saturday prior thereto; that the defendant was notified by telegram of the sale (at what particular time does not appear); and that there were several people at the sale. The goods which'survived the fire brought at such sale $250. Prior to this time the -inventory by defendant’s agent had been taken, and the kind, quality, and value of these goods were then known. No demand .for any other appraisement had then been made, or was there after made, and it does not appear from any witness for defendant that the goods were worth more than' the price at which they sold. Plaintiff claims they brought all they were worth. The clause in the policy provides that “it shall be optional, however, with this company, to take all, or any part, of the articles at such ascertained or appraised value, * * * within a reasonable time, on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do.” No claim is made that the option here provided for was ever exercised, or attempted to be exercised, or that any notice of such intention was ever given. The basis upon which this step could be taken existed because the value had been ascertained, the proofs of loss were served, and, if, defendant proposed to exercise its rights, it had the reserved thirty days in which to do it. The fact that plaintiff sold before the expiration of the time did not at all affect the right of the defendant to demand compliance with this condition. But, before it could put plaintiff in default of a violated condition, it must have itself taken steps to show that it wished to avail itself of the option. ¡Not having done that, plaintiff is not in fault for selling. He was required to do something, as, by the express provisions of the policy, he'could not abandon the property to defendant. It is therefore sufficient to say that defendant did not create the condition which could be violated by plaintiff; consequently there was no violation of any condition. And, in addition, defendant is not shown to have been prejudiced by anything that was done in this regard. The principle of the decision in McNally v. Phoenix Insurance Co., 137 N. Y. 389; 50 St. Rep. 680, applies to this case; and, in view of it, we do not think there has been such departure from the terms and conditions of the policy as will work a forfeiture.

We have examined the other exceptions in the case, but are unable to see error therein.

The judgment and order appealed from should therefore be affirmed, with costs.